137 Minn. 183 | Minn. | 1917
At the November 7, 1916, general election Edward W. Hawley, the contestant, and James F. Wallace, the contestee, were rival candidates for the office of alderman of the Second ward of Minneapolis. Wallace received a substantial majority of the votes cast. Hawley contested the election upon the ground that Wallace violated the Corrupt Practices Act. The court so. found and directed the entry of judgment annulling his election. Wallace appeals from the order denying his motion for a new trial.
The statute does not intend to punish one with the loss of an office to which he is elected because of statements circulated by his friends in which he does not participate. If it were otherwise, serious results might come to a candidate, himself entirely innocent, and the statute thus be made a means of fraud. Whether the successful candidate participated in the forbidden publication is a question to be determined upon a careful consideration and weighing of the evidence. A review of it in detail brings us to the conclusion that the court’s finding that Wallace participated in the publication is sustained.
The pamphlet was entitled “An Alderman with Clutch Trouble.’’ It was some 20 pages in length and contained matter in criticism of Hawley. Under the head of “An $847 Grab” it was alleged that this amount was paid out of the permanent improvement fund for the condemnation of an alley and that Hawley participated in it; and the reason given for his doing so was that a person interested in the improvement, who would have had to help pay if it had been paid by special assessment against benefited property, was the brother of the owner of a leading local newspaper. Under the head of “Another Attempted Grab” it was' stated that Hawley used his influence as a member of the fire department committee in getting a contract for a friend and sought to have him paid without his completing the contract. Under the heading “Hawley Favors Public Service Corporations” it was said, among other things, that Hawley refused to allow a real estate owner to plat certain property until he had given a certain amount of the land for the private use of a public service corporation. There was charges, in rather general terms, that in placing city insurance Hawley favored companies in
The statute is directed against false statements relative to facts. It is not intended to prevent criticism of candidates for office nor to prevent deductions and arguments from their official conduct unfavorable to them. It does not reach criticism which is merely unfair or unjust. It does reach false statements of specific facts. Many of the statements contained in this pamphlet were not untrue and many were not legally objectionable. There was a skeleton of truth in connection with nearly all of them, for Hawley was a member of the council and was concerned in the transactions of which the pamphlet purported to give an account. The charge throughout was that Hawley had been dishonest and unfaithful in the conduct of his office. No one could have misunderstood it. It was more than an insinuation. It was not all innuendo. There were direct statements and charges of fact. Insofar as the charges exceeded criticism and were statements of specific acts of wrongdoing they were false statements of fact. They were intended to affect voting at the election and naturally tended to that result, and they were not trivial or unimportant but were deliberate, serious and material within the meaning of sections 599 and 600. They were fully as much within the condemnation of the statute as those considered and held forbidden in Olsen v. Billberg, 129 Minn. 160, 151 N. W. 550.
The conclusion we reach might be supported upon the ground that the office involved is not a constitutional one and that the legislature which creates it may determine the method of trying the question of right to it. We prefer not to place our holding upon so narrow a ground. Nor from anything said should a holding be inferred that a failure to provide for a jury trial, if a party were constitutionally entitled to one, would render the statute unconstitutional, and that the court, in the absence of such provision could not call a jury.
The violation of the statute upon which the contest is based constitutes a crime. G. S. 1913, § 573. So far as concerns the constitutional question it is not important whether the contestant called the contestee for cross-examination as an adverse witness or made him his own. The provision of the Constitution, so far as here material, is as follows: “No person * * * shall be compelled in any criminal case to be a witness against himself.” This provision does more than relieve one from the necessity of being a witness in a criminal prosecution against himself. It protects him in any proceeding, civil or criminal, or in any investigation, from giving testimony tending to show that he committed a crime, though not then charged with it. Simmons v. Holster, 13 Minn.
No case is cited where the prosecution called the defendant as a witness in a strictly criminal case. We would not expect one. Such a course would be clearly wrong. Where a defendant is merely required to testify before the grand jury, and an indictment is returned against him on his evidence, it will be quashed. State v. Gardner, 88 Minn. 130, 92 N. W. 529; State v. Froiseth, 16 Minn. 296 (313). In a civil action a party may be called as a witness. If it is then sought to elicit from him incriminating testimony he may assert his constitutional privilege just as any witness may do. The contestee was not deprived of his privilege. He was given the opportunity to assert it but was required to submit himself to examination. Hnder the corresponding provision of the Federal Constitution, and under similar provisions of state constitutions, it is held that a preceeding to enforce a penalty or forfeiture because of the violation of a statute is a criminal action in the constitutional sense, and that a witness subject to such a proceeding can insist upon his privilege. In some cases the question arises when it is sought to make the defendant a witness in the proceeding to enforce the penalty or forfeiture] in others when it is sought to compel him to give testimony or disclose information which might be used against him in such proceeding.
The principle was applied in Boyd v. U. S. 116 U. S. 616, 6 Sup. Ct. 524, 29 L. ed. 746, where it was sought to establish a forfeiture of goods fraudulently imported without the payment of duties] and in Lees v. U. S. 150 U. S. 476, 14 Sup. Ct. 163, 37 L. ed. 1150, where it was sought to recover a penalty for the illegal importation of aliens under contract to labor] and in In re Nickell, 47 Kan. 734, 28 Pac. 1076, 27 Am. St. 315; and Ex parte Gould, 99 Cal. 360, 33 Pac. 1112, 21 L.R.A. 751, 37 Am. St. 57, where it was sought to compel a witness charged with contempt to be a witness in proof of it] and in Robson v. Doyle, 191 Ill. 566, 61 N. E. 435 ; and Currier v. Concord E. Corpora
The contestee cites as controlling State v. Markham, 162 Wis. 55, 155 N. W. 917. This was a proceeding to annul the election of a candidate because of a violation of the Corrupt Practices Act. The proceeding and the statute under which it was brought were much the same as the proceeding and statute before us. An order was obtained for the examination of the defendant before trial pursuant to the Wisconsin statute. 1915 St. e. 176, § 4096. The purpose of the examination was to show that the defendant was guilty of a violation of the statute and this would result in the annulment of his election. The order was dismissed because the statutory proceeding, “being an action to enforce a penalty or forfeiture for criminal misconduct, the defendant cannot be compelled to be a witness against himself therein.” The examination before trial authorized by the Wisconsin statute is a substitute for a bill of discovery under the old chancery practice. Cleveland v. Burnham, 60 Wis. 16, 17 N. W. 126, 18 N. W. 190; Whereatt v. Ellis, 65 Wis. 639, 27 N. W. 630, 28 N. W. 333. Courts of equity did not, by a bill of discovery, compel a defendant to make a disclosure of facts which subjected him to a criminal prosecution or to a penalty of forfeiture. 1 Pomeroy, Equity Jurisprudence, § 202; 1 Daniell, Chancery Practice, 605; 4 Jones, Ev. §§ 702, 708; 6 Enc. PL & Pr. 742-744; 14 Cyc. 333-335. Such a bill was demurrable. The ruling of the Wisconsin court was in harmony with the chancery rule. We take it that this was substantially its extent.
So far as concerns the result it may be conceded, and it is not neces
Order affirmed.