Becker v. Green County

184 N.W. 715, 176 Wis. 120, 1922 Wisc. LEXIS 123

• Court: Wisconsin Supreme Court
• Decided: February 7, 1922
• Status: Published

Opinions

The following opinion was filed October 18, 1921:

Owen, J.

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 jure officer cannot draw from the public treasury a salary attached to the office that has been paid to a de facto officer who wrongfully excluded the de jure officer therefrom. Clausen v. Fond du Lac Co. 168 Wis. 432, 170 N. W. 287. This is on the theory that the public ought not to be compelled to pay two salaries, and that as the disbursing officers ought not to be compelled to decide for the municipality which is rightfully entitled thereto, payment by them to the one in possession of the office should be held to discharge the public from further responsibility in the matter.

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 to test the constitutionality of the ordinance. We think the present case is clearly distinguishable from those cases. In those cases there never was a lawful removal, while in this case, as will presently appear, the removal was lawful, even though erroneous. The removal in this case being lawful, no reason appears for compelling a double payment of salary from the public treasury by that branch of the law which denies to- a de jure officer the salary which has been paid to a de facto officer, during the time he has been unlawfully excluded from office. We therefore think that the original impression of counsel to the effect that statutory law must be found to entitle plaintiff to a recovery was in accordance with the law on the subject.

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 provision already referred to gave rise to a vacancy m the office of county judge of Green County upon the conviction of plaintiff, no provision is made for restoration to office, or payment of the salary thereof, in case of a reversal of the judgment of conviction. For the accomplishment of that purpose plaintiff relies upon the provisions of sec. 4935 of the Statutes of 1917, which are as follows:

“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 operated to oust him from office. He was not within the class of persons therein dealt with. Note that the section contains two features: the first works a forfeiture of office; the second, a restoration. This section did not work a forfeiture of plaintiffs office. Can it be said to work a restoration? It seems plain that the class affected by the restorative provision is identical with the class affected by the forfeiture provision, and that no one who does not fall within the condemnation of the statute is entitled to its privileges. We come quite clearly to the conclusion, therefore, that the plaintiff did not fall within the class dealt with in this statutory provision, and that his right to recover his salary finds no justification therein.

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 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 within its purview. . . . The purport of the numerous cases cited ... is that where a statute is revised, or a series of acts on the same subject, are revised and consolidated into one, all parts and provisions of the former act or acts that .are omitted from the revised act are repealed.” 1 Sutherland, Stat. Constr. (Lewis’ ed.) §§ 269, 270; Pratt Institute v. New York, 183 N. Y. 151, 75 N. E. 1119.

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 upon appeal. No existing law provided therefor. The wrong which plaintiff sustained was inflicted at the time of his conviction. Statutes creating new rights are not con-’ strued as applying to past wrongs unless plainly so intended. Keeley v. G. N. R. Co. 139 Wis. 448, 121 N. W. 167; Quinn v. C., M. & St. P. R. Co. 141 Wis. 497, 124 N. W. 653. In case of doubt' or ambiguity they are construed as prospective only. Ibid. The revision we are considering is plainly prospective in its terms. It must be construed as applying only to public officers convicted of one of the offenses enumerated therein - after its enactment. Furthermore, it was not within the power of the legislature to make the restorative, features of the law applicable to plaintiff. It must be borne in mind that he was effectually divested of any right or title to the office. His status with reference to the office was fixed at the time of his conviction. Thenceforth he was a stranger thereto, as much as any other elector of Green County. A successor was lawfully in possession of the office. The legislature could no more restore the plaintiff to the office than it could induct therein one who had never held the same. Such offices must be filled either by election or appointment. They cannot be filled by legislative action. The impotency of the legislature to restore plaintiff to his office is an additional reason for not construing the law so as to vest in him the right to recover the unpaid salary.

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 responsibilities, as indicated by the act in question, is encouraging and commendable.

By the Court. — Judgment affirmed.