176 Wis. 120 | Wis. | 1922
Lead Opinion
The following opinion was filed October 18, 1921:
No mistake-proof system of administering justice has yet been devised, nor is it likely to be as long as the element of human judgment enters into the scheme. The innocent will be punished and the guilty will escape. We contemplate this fact with regret, but nevertheless the fact exists. No one is in a position to realize this better than the plaintiff himself, who during many years has occupied an honorable and prominent position in the judicial system of this state. Although he has suffered most grievously by reason of the error committed, he has no doubt faced his misfortune as philosophically as one may be expected to do who smarts under the sense of grievous wrong.
The question now presented is whether the written law of this state provides that a public officer who has been erroneously convicted of crime which works an ouster from his office may, upon a reversal of such erroneous judgment of conviction, recover the salary during the time he was so' excluded therefrom. If such recovery can be had it must depend upon statutory law, as it is' not recoverable under any principle of the common law. This court has held, in harmony with the great weight' of judicial authority, that a de
Upon the oral argument counsel for appellant cited to our attention the cases of Fitzsimmons v. Brooklyn, 102 N. Y. 536, 7 N. E. 787; Newberry v. Smith, 157 Mich. 181, 121 N. W. 746; Ward v. Marshall, 96 Cal. 155, 30 Pac. 1113; McEvers v. Boyle, 25 Cal. App. 476, 144 Pac. 308, a consideration of which, he thought, disclosed the error of his former assumption that the right of appellant, to recover must be referred to statutory law. In the first two cases city police officers were removed, in form, by administrative officers vested with authority to remove police officers under certain circumstances, which pretended removal had been adjudged void. It was held that the police officers were entitled to recover their salaries during the period of their unlawful suspension. In Ward v. Marshall, 96 Cal. 155, 30 Pac. 1113, the plaintiff, a justice of the peace, was convicted of wilful misconduct in office and, as a part of the judgment of conviction, was removed from his office, which judgment was reversed upon appeal. It was held that he was entitled to the salary of his office during the time he was suspended from the performance of his duties by the erroneous judgment of the trial court. In McEvers v. Boyle, 25 Cal. App. 476, 144 Pac. 308, it was held that one who has been appointed to the office of sealer of weights and measures created by an ordinance of the city of San Francisco was entitled to the salary of the office during a period in which he was prevented from performing the duties thereof
Sec. 3, art. XIII, of the constitution provides that “no person convicted of any infamous crime in any court within the United States . . . shall be eligible to- any office of trust, profit, or honor in this state.” By sec. 2, ch. 11, Revised Statutes of 1849, it was provided that “Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office: . . . 5. His conviction of any infamous crime, or of any offense involving a violation of his official oath.” This provision has continued in the statutes without change until 1917, and is found as a part of sec. 17.02 of the statutes of that year. The constitutional provision disqualified the plaintiff from further holding the office of county judge, and the statutory provision referred to expressly pi'ovided that his office should become vacant upon his conviction of any infamous crime. We have no doubt that the crime of which he was convicted was infamous within the meaning of that term as used in the constitution as well as the statute. While there has been much debate as to what constitutes an infamous crime, we think, by the great consensus of authority upon the subject, it is now deemed to mean as here used— a crime punishable by imprisonment in the state prison. 12 Cyc. 135; Words & Phrases, 3573 et seq. While the pro
“Whenever any convict sentenced by any court of this state or of the United States to be punished by imprisonment in the state prison shall, at the time of conviction and sentence, hold any office under the constitution and laws of this state such office shall be deemed vacated from the time of his commitment to said prison; but if the judgment against said convict shall be reversed on a writ of error he shall be restored to office, with all its rights and emoluments; but if pardoned he shall not by reason thereof be restored to office.”
In passing, it may be remarked that this statutory provision was enacted as a part of ch. 477 of the Laws of 1852, entitled “An act providing more fully for the organization of the state prison,” and that its place in the statutes from that time to this has been in the chapter relating to the management of the state prison. Much thought and reflection has not enabled us to divine the reason which prompted the legislature to provide that an office shall be deemed vacated from the time of the incumbent’s commitment to prison when it was already provided not only in the constitution but in the enactments of the- legislature that such vacancy should occur upon conviction, and we feel that further speculation will be neither profitable nor satisfying. We have to determine whether this statute entitles plaintiff to his salary for the unexpired portion of his term of office from which he was excluded by reason of his conviction.
It is plain that if the judgment against a convict in the state prison shall be reversed on writ of error “he shall be restored to office, with all its rights and emoluments.” Does this statute apply to plaintiff’s situation? He was never committed to the state prison. This section never
This conclusion renders it unnecessary for us to discuss a further vexing question that would be presented if this provision were held to apply to plaintiff, and that is whether it entitled him to the salary of the office during the time when he did not perform the duties thereof. That such was the legislative intent is far from being clear.
There now remains to be considered another legislative act upon which plaintiff relies for a right of recovery. Ch. 362 of the Laws of 1919, according to its title, was “An act to renumber and revise the sections of chapter 17 of the statutes, relating to resignations, vacancies and removals from office; to assemble therein pertinent local provisions scattered throughout the statutes; to remove inconsistencies and conflicts in and to harmonize sections and provisions of the statutes; to renumber sections and subsections and to amend other sections and subsections therein named from which pertinent local provisions have been removed for consolidation into chapter 17; and generally to consolidate, revise and provide uniform provisions relating to resignations and removals from and vacancies in offices of the state, counties, towns, and of cities, villages and school districts.” By that act sec. 17.02, above referred to, was renumbered and made sec. 17.03, and sec. 14 of the act provided:
“Subsection (5) of new Section 17.03 and sections 4507*127 and 4935 of the statutes are consolidated as subsection (5) of said new section 17.03 and-are revised toread: (17.03) (51 His conviction by a state or United States court of and seif* fence for treason, felony or other crime of whatsoever nature punishable by imprisonment in any jail or prison for one year or more, or his conviction by any such court of and sentence for any offense involving a violation of his official oath, in either case whether or not sentenced to imprisonment. A vacancy so created shall in no case be affected by a stay of execution of judgment. Reversal of the judgment against such officer shall forthwith restore him to office, if the term for which he was elected or appointed has not expired, but, in any event, shall entitle him to the emoluments of the office for all the time he would have served therein had he not been so convicted and sentenced; but pardon shall not restore him to office or entitle him to any of the emoluments thereof.”
It will be seen that the provisions we have had under consideration were therein brought together, consolidated, and made a part of the chapter relating to resignations, vacancies, and removals from office. If that statute had existed at the time of plaintiff’s conviction it would undoubtedly have entitled him to the salary which he now claims.
Upon the argument the writer queried whether this enactment might not be construed as a legislative interpretation of the then existing law, but a consideration of the act seems to negative such a purpose. In the first place, it says that three separate sections of the statutes are consolidated and revised to read. A revision of the statutes is something more than a restatement of the substance thereof in different language.
“Revision of statutes implies a re-examination of them. The word is applied to a restatement of the law in a corrected or improved form. The restatement mav be with or without material change. A revision is intended to take the place of the law as previously formulated Bv adopting it. the legislature say the same thing, in effect, as when a particular section is amended by the words ‘so as to read as follows.’ The revision is a substitute. It displaces and repeals the former law as it stood relating to the subjects
Furthermore, that a change in the existing law was intended is manifest from the very first sentence of the section. Original section 17.03 declared a vacancy in the office when the incumbent should be convicted of an infamous crime. As re-enacted it provides for a vacancy in the office if he shall be convicted of any crime punishable by imprisonment in any jail for one year or more. A crime so punishable is not ah infamous crime as that term is used in the constitutional provision or in the original sec. 17.03. Even if it should be held that within the contemplation of the constitutional, or former statutory, provision under consideration the sale of watered milk, for which the statute denounces a penalty of imprisonment in the county jail not more than thirty days, should be regarded as an infamous crime, as was held in Geary v. Bennett, 53 Wis. 444, 10 N. W. 602 (a slander case), still the re-enactment of sub. (5) indicates a clear change in the law upon this subject, because it does not provide for forfeiture of office unless the penalty provided is imprisonment in jail for at least a year. So that sec. 14, ch. 362, of the Laws of 1919 must be construed as a re-enactment, and not a mere continuance, of existing law.
We now come to the question of whether this law, which became operative June 20, 1920, before the reversal of the judgment of conviction and after the expiration of plaintiff’s term of"office, operated to vest in him a right to the salary which he claims. At the time of plaintiff’s conviction he was vested with no right of restoration or recovery of salary in the event of the reversal of the judgment of conviction
We are not insensible to the justice of the law as it now exists. This law, with sec. 3203a, Stats., indicates a purpose of society, speaking through its legislature, to assume responsibility for its wrongs inflicted upon the individual members thereof somewhat commensurate to the liability imposed upon individuals responsible 'for .wrongs inflicted upon others. It is to be regretted that the legislature did not act in time to make the law available to plaintiff, although the recognition by society of its duties and respon
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). The somewhat anomalous position and provisions of sec. 4935, Stats., as it stood prior to 1919 is commented upon in the majority opinion.
I agree with the view that that section as it stood at the time of plaintiff’s conviction did not of itself work a forfeiture of office, that being effected by then sec. 17.02, Stats. Therefore said sec. 4935, Stats., as it stood all those years must have been intended to refer to persons whose right to office was forfeited under sec. 3, art. XIII, Const., and under sec. 17.02, or else to none at all. To give the reasonable construction to it and to which such beneficial statute is entitled, it would have to be held that it was intended to benefit those who so forfeited office by conviction rather than by a subsequent commitment; the statute therefore could not, in this essential, be literally followed.
Furthermore, its evident purpose was the giving to such particular class of unfortunate victims of a miscarriage of justice who had been unlawfully deprived, through the mistaken act of the sovereign, of the right to continue to hold and enjoy an office given under the laws of the sovereign, compensation or damages for such deprivation and measuring the amount thereof by the rate of the salary fixed for such office.
That the salary was considered as something over and above, or separate and apart from, the office itself is quite manifest, because otherwise the following quoted words from sec. 4935, Stats., where, after providing for restoration to office, it also says, “with all its rights and emoluments,” were rank surplusage, for plainly restoration to office would of itself and.without further pYoviso carry with it, as a matter, of right and law, the prescribed compensation so long as the office be further occupied and services ren
“Any justice of the peace who shall be convicted of bribery or perjury or any other infamous crime, shall in the same sentence be expelled and removed from such office.”
This latter provision, in substance, has stood in the statutes as long if not longer than the other provisions so consolidated. It was originally § 7, art. I, “An act concerning justices of the peace,” on p. 321 of the Territorial Statutes of 1839, then sec. 264 of ch. 88, “Justices’ courts,” in the
For the foregoing reasons I think the plaintiff came within the reasonable terms of the statute as it stood at the time of his conviction so as to have been entitled to hi's present claim for compensation upon the reversal of the judgment of conviction though there had been no change in the statute.
I am also convinced1 that plaintiff was within the terms of sec. 17.03, Stats., as it. stood after the revision of 1919 and as it was in force at the time of the reversal. It is a highly remedial statute and should receive no harsh or strained construction. It is aimed to make a slight recompense to one who . has suffered a grievous wrong done through the instrumentalities of the sovereign, either state or national, by that which is subsequently found to have been a mistake or miscarriage of justice. That the required financial compensation is to be borne by a particular community .rather than by the state at large ought not to militate against its application.
That the salary is to be considered as merely the meas
Doubtless one who would come within the literal meaning of sec. 3203a and who happened' to be' an officeholder at the time of his conviction and thereby forfeited his office would not be entitled to compensation under the general terms of sec. 3203a and also under sub. (5), sec. 17.03, and would be confined, either by option or construction of law, to not more than one such method of relief; but nevertheless the idea of compensation is the basis of the one as much as of the other. It is a gratuitous compensation to be borne by the taxpayers, and whether of the commonwealth at large or of some particular community does not essentially altér the spirit and purpose of the laws.
Such features make a' substantial distinction between such a case as the one here, or one coming under sec. 3203a, and the situation where, under the doctrine of public policy as adopted by this court, after a choice from conflicting, decisions elsewhere, and as pronounced in Clausen v. Fond du Lac Co. 168 Wis. 432, 170 N. W. 287, it is held that municipalities, in the absence of specific statute, should not be required to pay the salary of an ousted de jure officer for a period for which it was paying for and receiving, the services of a de facto officer.
It is held by the majority opinion that to allow the plaintiff to recover under the statute as it stood after, the revision of 1919 and at the time of the reversal of the judgment when the term of his office had expired would be to give it a retroactive effect, citing as a basis for such ruling Keeley v. G. N. R. Co. 139 Wis. 448, 454, 121 N. W. 167, and Quinn v. C., M. & St. P. R. Co. 141 Wis. 497, 124 N. W. 653, both of which involved changes in the death-recovery
So far as the plaintiff here is concerned, the benefits under sub. (5), sec. 17.03, Stats., first became applicable to hinrwhen- the reversal of conviction occurred, for until then he had no shadow or semblance of claim to them, and when that time came he was within all the conditions of the statute entitling him to such relief. Being in the nature of a gratuity, so far at least as compensation is made for the time for which he could render no services during the period of conviction, there is no question arising as to whether the statute so giving such gratuity is retroactive or not. There is no more need of considering the question whether there is an express or implied intention to have a retroactive effect,
The judgment of the lower court, to my mind, should have been reversed.
Rehearing
The appellant moved for a rehearing.
The following opinion was filed February 7, 1922:
Upon a motion for a rehearing the appellant calls attention to the fact that although he was convicted on August 6th and sentenced on August 18th, nevertheless he continued to act as county judge until the 20th day of September, at which time his successor qualified and assumed the office; that he was paid the salary of the office up to and including August 31st; that he is at least entitled to the salary for the period between August 31st and September 20th, during which time he actuálly occupied the office. This contention is made for the first time upon the motion for a rehearing. Whether appellant is entitled to the salary of the office during such twenty-day period de
The cause of action set out in the plaintiff’s complaint is probably sufficient as a matter of pleading to enable him to recover his salary for any part of the period covered thereby to which he may lawfúlly be entitled. He should, however, have called to the attention of the trial court as well as the county board the distinct nature of his claim for salary for the twenty-day period. As the claim was presented to the county board and as the case was prosecuted, neither the trial court nor the county board had an opportunity to pass upon the question now raised. It is well established that matters not called to the attention of the court and opposing parties during the trial, so that in the determination of the issues they may be given due consideration, are effectually waived and cannot thereafter be urged as grounds for a new trial or for a reversal of the judgment on appeal. Congar v. Chamberlain, 14 Wis. 258; Harrington v. Downing, 166 Wis. 582, 166 N. W. 318. An application of this rule in its full vigor would require a holding that plaintiff has waived his right to the salary of the office during the twenty-day period. While we should not entertain the question thus presented for the first time upon a motion for a rehearing, we are not disposed to absolutely foreclose the plaintiff from recovering the salary for the twenty-day period if he be entitled thereto — a question upon which it must be understood we express no opinion.
We- feel that the plaintiff should have the opportunity, if he so desires, of presenting his claim for the salary during
So ordered.
Concurrence Opinion
I concur in the above dissent.