PEOPLE OF THE STATE OF COLORADO, plaintiff, W. GRANT CHESTER, Intervenor v. CARL E. ENLOW AND ARTHUR WERMUTH.
No. 18,183.
Supreme Court of Colorado
Decided April 22, 1957.
(310 P. [2d] 539)
Messrs. HORNBEIN & HORNBEIN, Mr. ROY O. GOLDEN, for intervenor.
Messrs. ROBINSON & CURRAN, for defendant Carl E. Enlow.
Mr. THOMAS J. CARNEY, Mr. IRA C. ROTHGERBER, JR., for defendant Arthur Wermuth.
En Banc.
MR. JUSTICE FRANTZ delivered the opinion of the Court.
ON January 11, 1957, the District Attorney for the First Judicial District filed an original proceeding in this
Because the question thus presented was deemed publici juris, this court agreed to act, and in that behalf issued a rule to show cause to Enlow. The impact of the various functions and activities of the office on the public, all in the exercise of the prerogatives thereof and in the enforcement of the civil and criminal process of the courts, prompted us to accept the responsibility of original jurisdiction.
Enlow had been elected in November 1954 to the office of Sheriff of Jefferson County, and qualified and assumed his duties in January 1955. In March 1956 Enlow was indicted by the federal grand jury. He was charged in two counts with federal income tax evasion for the years 1949 and 1950 in violation of
While these court proceedings were running their course, certain events were transpiring in the county affecting the office of Sheriff. Just prior to the imposition оf the sentence upon Enlow, the Board of County Commissioners of Jefferson County considered a resolution demanding that Enlow tender his resignation. This resolution was defeated by a vote of two to one. On January 7, 1957, and before the decision of the Court of Appeals became final, the Board of County Commissioners as then constituted held its last meeting, and adopted a resolution appointing W. Grant Chester, the Intervener herein, to the office of Sheriff for Jefferson County. Two voted for the resolution, and the third abstained from voting. Enlow refused to surrender the office to Chester.
In the afternoon of January 11, 1957, and still at a time before the decision of the Court of Appeals became final, Enlow tendered his resignation to the Board of County Commissioners as newly constituted following the November 1956 election. Enlow‘s resignation was accepted immediately, and the Board therеupon appointed Arthur Wermuth, later made a party defendant herein, to succeed Enlow, and Wermuth has been in possession and control of the office, and functioning as Sheriff of the County since this appointment.
Despite the changing circumstances, the controversy continues; Enlow‘s resignation and the resultant action of the Board metamorphosed the original dispute in this court from charged usurpation of office by Enlow to a contest between Wermuth and Chester over who is
In our view of the statute, a county office becomes vacant by operation of law when the incumbent is convicted of an infamous crime, or when he is convicted of any offense - whether felony or misdemeanor -, if it involves a violation of his official oath. People ex rel. v. Laska, 101 Colo. 221, 72 P. (2d) 693. Stated otherwise, a conviction of either offense automatically causes a vacancy in the office. In re Obergfell, 239 N.Y. 48, 145 N.E. 323; State v. Sullivan, 66 Ariz. 348, 188 P. (2d) 592; State v. Jurgensen, 135 Neb. 136, 280 N.W. 886.
Any other construction would do violence to plain, unequivocal language. Indeed, so simple, direct and integrated is the language of
“Any person required under this title to collect, account for, and pay over any tax imposed by this title, who willfully fails to collect or truthfully account for аnd pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall; in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution.”
If Enlow was convicted of violating this section, and if such amounts to conviction of an infamous crime or an offense involving a violation of his official oath, within the purview of
Was Enlow convicted of violating said Revenue Act prior to January 11, 1957, the date of his resignation, and if he was, was he convicted of an infamous crime or of
What meaning should be attached to the term “conviction” as used in
Chester contends that the verdict of the jury constitutes the “conviction” of Enlow, and relies upon Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; Quintard v. Knoedler, 53 Conn. 485, 55 Am. Rep. 149, and Attorney General ex rel. O‘Hara v. Montgomery, 275 Mich. 504, 267 N.W. 550, as supporting his position. Wermuth maintains that “‘Conviction,’ in its legal sense, means a final judgment conclusively establishing guilt,” 13 C.J. 907, §4, and that the рresumptive guilt arising from the verdict of guilty and the judgment and sentence thereon, where the matter pends before an appellate court, is insufficient, relying on language used in People ex rel. Dunbar v. Moore, 125 Colo. 571, 245 P. (2d) 467.
This court has considered the word under varying circumstances, and has adopted a different definition in each case. People v. Brown, supra, involved the construction of a statute which commenced: “If any person convicted of any criminal offense before any justice of the peace shall wish to appeal to the county court, he
In Read v. Read, supra, the husband sought review in this court of an order requiring him “to pay certain expenses incident to the proceeding and other allowances and expenses in connection with a criminal action” against his wife. It was held that the husband “became obligated to support plaintiff, and nothing short of legal wrongful conduct on her part can free him from that obligatiоn. Here there is no wrongful conduct on plaintiff‘s part yet established, for, notwithstanding the fact that she has twice been convicted of murder of the second degree, nevertheless, if upon review in this court the judgment of conviction is reversed, she has not been convicted of a felony for which defendant could maintain an action in divorce.” (Emphasis supplied.)
Where a member of the Colorado bar was indicted for and convicted of the crime of conspiracy to violate the Lindberg Act relative to kidnaping in the federal district court for Western Oklahoma, and was thereafter “sentenced to confinement in a United States penitentiary for a term of ten years,” does such conviction work an immediate disbarment in the state even though he denies guilt in the disbarment proceedings? This court made
“Neither petitioner nor respondent, as our study convinces, has fully apprehended the doctrine of our decisions in disciplinary proceedings based on conviction of felony in courts other than of Colorado jurisdiction. When a member of the bar is convicted of a felony, a Colorado legislative enactment operates to disqualify him from ‘practicing as an attorney in any of the courts of this state.’ ‘35 C.S.A., c. 48, §533 (C.L., §7144). Clearly, if in such an instance there has been conviction in a Colorado court, the status of the convicted attorney is fixed by law, and upon formal exhibition of the record we are bound to note the fact and order accordingly, if, indeed, an order is necessary. But where the conviction has been in a court of another jurisdiction, as here, and the attorney whose discipline is sought formally invokes that right, we have deemed it consonant with justice to accord him the privilege of denying his guilt notwithstanding his convictiоn in a ‘foreign’ court, and to plead facts and circumstances reasonably indicating that he did not have a fair trial, or which import innocence rather than guilt, and have inquiry made under our supervision. People ex rel. v. Brayton, 100 Colo. 92, 65 P. (2d) 1438; People ex rel. v. Burton, 39 Colo. 164, 88 Pac. 1063, 121 Am.St.Rep. 165. Otherwise, as we perceive, the judgment of the convicting jurisdiction would operate extraterritorially, and automatically, as if by lawful mandate, require the ministers of justice of another sovereign jurisdiction to visit an added penalty on him, who, prone and helpless before them, denies his guilt and pleads that which indicates his innocence of the charge in the court of his trial. In an analogous situation, the New York court has said: ‘The disqualification created by this statute is consequent only upon a conviction in this state.’ Sims v. Sims, 75 N.Y. 466. * * * Considering that the judgment here must be ours, we think to find the facts upon which to base it, if properly
moved thereunto, alsо is our responsibility. The sum of our holding heretofore which we now emphasize, is that where the conviction has not been in our courts, the statute, cited supra (quoted in the Brayton case), and on which the attorney general relies, does not foreclose a respondent as to the fact of guilt, or conclude us in measure of discipline.” (Emphasis supplied.)
Conviction under the statute of an infamous crime, or of an offense involving the violation of the oath of office operates as a disqualification so as to create a vacancy forthwith in the office. Since the statute, providing for vacancies in county offices in certain contingencies, is a disqualifying statute, it is our opinion that People ex rel. v. Laska, supra, involving a statute disqualifying lawyers from the practice of law in this state upon being convicted of a felony, is authority on the question of whether Enlow was convicted under such circumstances as to effect an immediate vacancy in his office. In so holding, we apply the doctrine that in the absence of an express statute giving effect, within the state which enacts it, to a conviction and sentence in another jurisdiction, such conviction and sentence can have no effect, by way of penalty, or of personal disability or disqualification, beyond the jurisdiction of the court rendering such judgment. Logan v. U.S., 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. In applying this doctrine courts have held that federal and state jurisdictions are foreign to each other. People ex rel. v. Laska, supra; People ex rel. v. Brayton, 100 Colo. 92, 65 P. (2d) 1438; People v. Gutterson, 244 N.Y. 243, 155 N.E. 113; Brown v. U.S. 233 Fed. 353, L.R.A. 1917A 1133; Hildreth v. Heath, 1 Ill. App. 82. Where an attorney was convicted in the District Court of the United States for Colorado of violating a federal statute, such conviction would be considered by the Colorado court in disbarment proceedings in an evidentiary capacity only, and would not work extraterritorially to effect a disbarment. People ex rel. v. Brayton, supra. From these authorities it appears that
The refusal to give extraterritorial effect to convictions unless statutory provision is made therefor is settled law. People ex rel. v. Laska, supra; Sims v. Sims, 75 N.Y. 466, and Commonwealth v. Green, 17 Mass. 515 (both cited in the Laska case); State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508, 86 A.L.R. 290; In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A.N.S. 892, 17 Ann. Cas. 592. That the legislature of this state is thoroughly cognizant of the rule is apparent from its enactments in other circumstances providing for the extraterritorial effect of convictions in other jurisdictions. Thus,
We attach significance to the failure of the legis-
Is the violation of
It is the position of Chester that an infamous crime is one punishable by imprisonment in any penitentiary, and he cites in support оf his contention Ex Parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. U.S., 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; In re Claasen, 140 U.S. 200, 11 S.Ct. 735, 35 L.Ed. 409; Becker v. Green County, 176 Wis. 120, 184 N.W. 715; Crampton v. O‘Mara, 193 Ind. 551, 139 N.E. 360; Attorney General ex rel. O‘Hara v. Montgomery, 275 Mich. 504, 267 N.W. 550.
We are inclined to hold that
But, if all felonies arе to be considered as infamous crimes, Chester is confronted with another impasse. The term “felony,” unadorned by words of enlargement or amplification, when used in the statutes of this state has a well-defined meaning, as is disclosed by
A felony involves an “offense punishable by death or imprisonment in the penitentiary, and none other.” “The penitentiary” does not mean a penitentiary or any penitentiary; it means the penitentiary of this state. Whether infamous or not, an offense is a felony if punishable by death or imprisonment in the state penitentiary. The word “the” is a word of limitation - a “word used before nouns, with a spеcifying or particu-
Conviction of a felony, whether it be infamous or otherwise, has a restricted scope, except where broadened by statutоry language to include conviction in other jurisdictions (as witness our divorce and habitual criminal statutes, supra.) “The term felony, wherever it may occur in this constitution, or the laws of this state, shall be construed to mean any offense, and no other, the penalty for which shall be death or imprisonment in the state penitentiary.” (Emphasis supplied.) People v. Godding, supra. “If the penalty is imprisonment in the state penitentiary, it is considered a felony, and if by fine or imprisonment in the county jail, a misdemeanor.” (Emphasis supplied.) Eckhardt v. People, supra.
The meaning given to the words “the penitentiary” by our court is consonant with decisions from other jurisdictions. It was said of a statutory provision similar to our constitutional provision, “I think it quite clear that the disqualification created by this statute is consequent only upon a conviction in this state.” Sims v. Sims, supra, cited with approval in the Laska case, supra. In a disbarment proceeding the Supreme Court of North Carolina was called upon to determine whether a conviction in a federal court in Louisiana of forging certain receipts worked a forfeiture of the privilege to practice law where the statute provided “That an attorney at law must be disbarred and removed for the following causes: (a) Upon his being convicted of a crime punishable by imрrisonment in the penitentiary . . .” The majority and dissenting opinions reveal that dissension arose over the construction to be given the words, “imprisonment in the penitentiary.” The majority held that a conviction in another jurisdiction was not within the terms of the statute. In re Ebbs, supra. It was held in State v. Burnett, 184 N.C. 783, 115 S.E. 57, in a case involving a liquor violation, as follows: “The Polk County Act provides that upon conviction for manufacturing liquor, the convicted person may be imprisoned in the penitentiary. The act, of course, uses the term ‘penitentiary’ in accordance with its ordinary signification, which is ‘state‘s prison.‘” See also State v. Delmonto, 110 Conn. 298, 147 Atl. 825; Queenan v. Territory, 11 Okla. 261, 71 Pac. 218, 61 L.R.A. 324.
Enlow was convicted of a violation of the federal Internal Revenue Code. Chester would have this court consider the evidence before the federal trial court as establishing disqualification. It is said that this evidence will reveal that Enlow accepted pay-offs for illegal operation of slot machines and other gambling devices in Jefferson County, and failed to report said pay-offs in
“I, Carl Enlow, do solemnly swear by the ever living God, that I will support the Constitution of the United States and the State of Colorado, and faithfully perform the duties of the office of Sheriff, upon which I am about to enter.”
Enlow was neither charged with nor convicted of taking pay-offs. The mere doing of a prohibited act by an official, without his conviction therefоr, does not create a vacancy. State v. Henderson, 166 Miss. 530, 146 So. 456.
It has been suggested that such construction gives an officer-holder who is a law violator the power to retain his office, and that the county is rendered helpless to remove such unworthy servant. But the law has provided other machinery for removal. The people of Jefferson County were not remediless; they could have instituted proceedings, which might have resulted in Enlow‘s removal from office long before he tendered his resignation. The remedy is contained in the following language from
Two matters remain to be discussed. Much was said in oral argument about the failure of the legislature to label as infamous crimes murder and treason, and that therefore the court should not construe as descriptive of infamous crimes
We conclude that Enlow was nоt convicted of an offense within the terms of
MR. JUSTICE DAY specially concurring in the result only.
MR. JUSTICE DAY specially concurring in the result.
I agree that defendant Arthur Wermuth is the duly appointed and qualified sheriff of Jefferson County, but if the majority opinion in this case is to be the law of this state in the future governing disqualification of persons convicted of infamous crimes or felonies to hold office, then I wish to make it clear that I had no part in the making.
While it is a matter of debate, by no means settled, that conviction such as would create automatic vacancy in a county office means final conviction (after all appellate remedies are exhausted), I am in agreement that as of January 11, 1957, Enlow was the sheriff. This is so because on that date Enlow was in a position to pursue additional review in the appellate courts of his conviction by a federal jury. On this point the majority opinion and I agree. If the court had stopped there, as well it could and should have under the facts before us, I would append my Amen to the pronouncement. Beyond that I refuse to be involved. I am convinced that if Enlow had not resigned on January 11th, on the 12th, when he abandoned further appellate proceedings and accepted the conviction and sentence of the court, it would have as effectively, and ipso facto, vacated the office as would his death or resignation. As I read the pronouncement of my brethren of the majority, if Enlow had not resigned, he would still be sheriff оf Jefferson County, notwithstanding his final conviction of a felony in the federal courts and notwithstanding that he now languishes in a federal penitentiary. As I read the opinion, it would require some laborious and circuitous procedure to be instituted, by whom we know not, successfully to
The United States Supreme Court in Ex Parte Wilson, 114 U.S. 417, considered the question of infamous crimes and punishment, and we there find these quotations:
“The question is whether the crime is one for which the statutes authorize the court to award an infamous punishment, not whether the punishment ultimately awarded is an infamous one. * * *” (Emphasis supplied.)
The court further stated:
“For more than a century, imprisonment at hard labor in the State prison or penitentiary or other similar institutions has been considered an infamous punishment in England and America. * * * ” (Emphasis supplied.)
“* * * our judgment is that a crime punishable by
imprisonment for a term of years at hard labor is an infamous crime, * * *.”
Thus the court reaffirmed the original construction of these terms in Mackin v. United States, 117 U.S. 348.
A quotation from Crampton v. O‘Mara, supra, involving a city councilman and a violation of a federal statute concerning the right of citizens to vote in elections for United States Senator, points up the inconsistencies and the danger of limiting infamous crimes to those against the laws of the state only. In construing a statute similar to ours, the court said:
“It was suggested at oral argument that the power of the Legislature is limited to infamous crimes against the laws of the state; that is to say, those guilty of infamous crimes against the laws of the United States and sister states, are eligible, while those guilty of infamous crimes against the laws of this state are ineligible. We cannot assent to the proposition that the framers of our Constitution intended a thing so anomalous, illogical, and unjust.
“We hold that, * * * a person whо has been convicted of an infamous crime within the definition hereinbefore set out, either against the laws of the State, the United States, or a sister state, is disqualified for office in this state.” (Emphasis supplied.)
Historically, the statute under consideration here was one adopted by our pioneer legislature in territorial days. It was carried over by the legislature when the transition was made from Territory to Statehood and Colorado was admitted to the Union. It is significant that the framers of our state Constitution had come from other states, and they and their fellow citizens of the new state had trekked across the plains in covered wagons. It is significant also that those who were to come after them would, for the most part, be from “foreign” jurisdictions, the then existing sister states. The strong arm of the law in those days was the United States Marshal. In such a background and setting is it to be thought that
“The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other.”
I find the majority opinion amending this section by the insertion of the words “of this state.” I quote from the opinion:
“A felony involves an ‘offense punishable by death or imprisonment in the penitentiary, and none other.’ ‘The penitentiary’ does not mean a penitentiary or any penitentiary; it means the penitentiary of this state.”
The opinion also adds that punishment by death must be in the Colorado state penitentiary likewise to be a capital offense, but we need not concern ourselves with that because if a person is еxecuted, no matter where, there would be no problem.
“The construction given the act in question by the trial court is fraught with such momentous and disastrous results that we need go no further than invoke against it the fundamental rule that absurd interpretations will not be given statutes when reasonable ones may be resorted to. A reasonable one here lies at hand.”
I believe a more reasonable construction of the constitutional definition of a felony lies at hand; that what the framers of our constitution had in mind was punishable “in the penitentiary” (of the jurisdiction administering or prescribing such punishment). I pose the question, “Were the framers of the constitution and the legislature less adept at clear expression than the courts? The legislature attempting to further define the difference between a felony and misdemeanor enacted
“Penalty not fixed by statute - punishment. - In all cases where an offense is denominated by statute as being a felony, and no penalty is fixed in the statute therefor, the punishment shall be not more than five years in the penitentiary. In all cases where an offense is denominated a misdemeanor, and no penalty is fixed in the statute therefor, the punishment shall be not more than one year in the county jail, or a fine of not more than three hundred dollars, or both such fine and imprisonment in the discretion of the court.” (Emphasis supplied.)
Likewise the majority opinion quotes from Brooks v. People, 14 Colo. 413, 24 Pac. 553, and People v. Godding, 55 Colo. 579, 136 Pac. 1011, as follows:
“* * * under our constitution the test by which to determine whether an offense less than capital shall be
deemed a felony or a misdemeanor is made to depend upon whether the same is punishable by imprisonment in thе penitentiary or in the county jail.” (Emphasis supplied.)
Both the legislature and the court in expressing the difference in the constitutional definition of felony and misdemeanor used the word “the” in two places, both of them modifying a noun; one “the penitentiary” and the other “the county jail.” The majority opinion would construe the first “the” as limiting it to the Colorado State Penitentiary. How then would they construe the second “the“? There are sixty-three county jails in the state of Colorado! To which county jail does the law or the court‘s opinion refer in defining misdemeanor? The answer it seems is plainly “the” county jail (of the jurisdiction administering or prescribing the punishment). If we can understand the use of the word “the” when referring to a number of county jails, I think it is not strained construction to say that the framers of the constitution intended the words “the penitentiary” to refer to such institutions in the several states or of the United States.
Another point should bе noted. The majority opinion overlooks the gist of the federal offense of which Enlow now stands convicted and for which he is now confined in the penitentiary prescribed by the United States District Judge. The gravamen of the charge is the filing of a “false and fraudulent” tax return. Fraud, deceit, misrepresentation or any form of lying is infamous whether in Colorado or elsewhere. We have a similar provision in the state income tax law taken almost verbatim from the Congressional Act. Thus, according to the opinion, we may envision a county official convicted of evading state income taxes by the filing of false and fraudulent returns, and therefore subject to immediate removal from office, while another official, who had merely defrauded the United States, is permitted to continue in office because he had not offended against the
The opinion makes much of what this court has done in disbarment and disciplinary proceedings against lawyers. There is no statute similar to 35-1-5 affecting lawyers. The matter of disbarment and disciplining of lawyers is exclusively within the jurisdiction of the Supreme Court. If a lawyer is convicted of a felony in this or any other state or by federal law and is incarcerated in the penitentiary of the jurisdiction offended against, he is, by reason thereof, as a practical matter, prevented from practicing. The practice of law involves the personal representation of clients. If time-consuming procedures are followed in that regard the public is not harmed. If we should grant a person convicted in some other jurisdiction the privilege of practicing in this state, the public can take care of that since there is no compulsion to employ his services. However, there is only one sheriff in a county. He is a law enforcement officer with broad policy making authority. He operates his office by the use of deputies and other employes. To state that one could occupy the office through deputies and others and could dictate policies while languishing in the penitentiary so long as his offense was not against the laws of Colorado, is a construction so strained that I am unable to follow it.
Articles in newspapers and magazines reveal how convicted felons, while serving time in the penitentiary, have built up businesses, accumulated fortunes, played the stock market, taken a wife, and otherwise engaged
Other mischief inherent in the opinion, as I perceive it, is the danger that it appears to broaden the holding in Smalley v. People, 134 Colo. 360, 304 P. (2d) 902, which is cited with approval and as authority for some of the pronouncements therein. Smalley v. People, supra, does not remotely touch on the question here involved. It should be read only in the light of the problem presented which was simply that since a minor first offender is by law not liable to punishment in the state penitentiary, such first offense is not a felony.
In like manner I find in the opinion that the phrase taken from the constitutional definition of a felony “in the state penitentiary and none other” is loosely used in at least one portion of the opinion so as to appear to construe the words “and none other” as relating to “the penitentiary.” It is clear, however, that these words relate back to the words “the offense” as clearly set out in People v. Godding, supra.