State v. Preston

34 Wis. 675

• Court: Wisconsin Supreme Court
• Decided: January 15, 1874
• Status: Published

Opinions

DIXON, C. J,

This is an action to recover a penalty alleged to have been incurred by the defendant under section 101, ch. 19, R. S. (1 Tay. Stats., 508, § 137), which reads as follows: “ Whoever shall willfully obstruct any highwa}'-, or fill up or place any obstruction in, any ditch constructed for draining the water from any highway, shall forfeit for such offense a sum not exceeding twenty-five dollars; and the'overseer of the proper district shall cause such obstruction immediately to be removed.”

Tbe principal question to be considered in the case is as to tbe meaning and effect of tbe word “ willfully ” above used, and arises upon an offer of proof made by the defendant on tbe trial, which was rejected by the court. Having shown by the witness, one of the supervisors, that an application was made to the supervisors to take up the road in question, the defendant then offered-to prove by him, “that the supervisors of-the town of Koshkonong, in the year 1871, and prior to the alleged act of the defendant in obstructing this road, upon proper application made to them to take up and discontinue the same, upon due notice given, met to decide such application, viewed the premises in question, and determined that there was no highway there, and so informed the defendant, and instructed him to place the fence where he did.” The offer was objected toby the plaintiff, and rejected by the court; apd exception was taken by the defendant.

The question thus presented might have been considered in other cases which have come before this court, and particularly in The State v. Hayden, 32 Wis., 663; but as the point has never been taken, it has not hitherto been considered or decided. It is still an open question, and is now to be determined for the first time.

Eor the plaintiff it is contended that the term willfully, as here used, signifies no more than voluntarily or purposely — thus distinguishing the act of obstructing made penal, from one which may be said to have been accidental, which last alone-it was the design of the statute not to punish. The word ivill-fully, as used to denote the intent with which an act is done, is undoubtedly susceptible of different shades of meaning or degrees of intensity according to the context and evident purpose of the writer. It is sometimes so modified and reduced as to mean little more than plain intentionally, or designedly. Such is not, however, its ordinary signification when used in criminal law and penal statutes. It is there most frequently understood, not in so mild a sense, but as conveying the idea of legal malice in greater or less degree, that is, as implying an evil intent without justifiable excuse. 1 Bishop on Criminal Law, § 421. Thus in The State v. Abram, 10 Ala., 928, where the mutilation, by a slave, of any of the members of a white person, when “ willfully ” committed, was declared by the statute to be mayhem, and so punishable, it was held that a mutilation could not be regarded as willfully done, unless under the circumstances it could be considered as having been wantonly done, when it would be deemed willful within the meaning of the act. The court say “ that it was not intended by the term willful to exclude those acts only which were purely accidental, and without blame of any kind.” In McManus v. The State, 36 Ala., 285, speaking of the word willful as employed in statutory murder, the court say: 11 Willful is not the synonym of voluntary. In truth, they express no idea which is common to both. The former is a word of much greater strength than the latter. Willful, in this connection, denotes ‘governed by the will; without yielding to reason; obstinate; stubborn; perverse; inflexible.’ Voluntary, in this connection, means ‘willing; acting with willingness.’ It is the antithesis of involuntary.” And see also Harrison v. The State, 37 Ala., 154, where the word willful, employed in a statute imposing a penalty for the disturbance of religious worship, was understood in a milder sense.

And in Commonwealth v. Kneeland, 2 Pick., 206, 220, indictment under the statute against blasphemy, Chief Justice Shaw says: “ The statute makes it penal willfully to blaspheme the holy name of Grod, etc. The word ‘ willfully,’ in the ordinary sense in which it is used “fin statutes, means not merely ‘voluntarily,’ but with a bad purpose, and in this statute must be construed to imply an intended design to calumniate and disparage the Supreme Being, and to destroy the veneration due to Him.”

In Commonwealth v. Bradford, 9 Met., 268, where the defendant was indicted on the statute for willfully giving in a vote at an election, knowing himself not to be a qualified voter, it was held that evidence that he had consulted counsel as to his right to vote, and submitted to them the fact3 of bis case, and was advised by them that be had the right, was admissible in his favor as tending to show that he did not know that he was not a qualified voter.

But the fullest and most satisfactory discussion we have found in any case is in United States v. Three Railroad Cars, 1 Abbott’s U. S. Rep., 196, which arose in the district court of the United States for the northern district of New York. The question there was as to the proof necessary to authorize a conviction under a penal statute of the United States prescribing a punishment for “ willfully ” removing an official seal from property which had been sealed up by officers of the customs: and the court decided that it must appear that the party not only intended to remove the seal, but that he had at the time a knowledge of its character. One who removed such a seal in ignorance of its character, and in the honest execution of a supposed duty in the care and transportation of the property, was held not liable to punishment under the statute, for the reason that he could not be deemed to have acted willfully. Speaking of the words knowingly, vdllfully and maliciously, as used in criminal and penal statutes, the court says : “ The first" of these words does not, in common parlance, or in legal construction, necessarily and per se imply a wicked purpose or perverse disposition, or indeed any evil or improper motive, intent or feeling ; but the second is ordinarily used in a bad sense to express something of that kind, or to characterize an act done wantonly, or one which a man of reasonable knowledge and ability must know to be contrary to his duty.”

Further citations might be made, but the foregoing are enough, we think, to justify the conclusion at which we have arrived, which is, that the evidence offered should have been received for the purpose of showing that the obstruction in question was not willful. Assuming the facts to have been as stated in the offer, it is clear that the defendant was not guilty of the offense charged, and for which a penalty has been assessed against him in this action. The word willfully, employed in the statute to characterize the offense, can not be construed, as counsel for the plaintiff contends, so as to embrace an obstruction erected in the most perfect good faith by the land owner, believing that no highway existed at the place, and acting under the advice and direction of the proper public officers charged by law with the general supervision and control of all the roads and highways in the town. The power of laying out, altering and discontinuing highways has, with one or two exceptions, been conferred exclusively on the supervisors of the respective towns; and when they, acting as a board, either formally or informally, or with or without strict legal authority in the premises, notify the land owner that no highway exists, and that he may lawfully erect his fence, no penalty can be recovered against him for such erection under the statute in question. An obstruction so created can not be regarded as willful within the meaning of the statute, even under the mildest construction which can here be put upon that term. It may be unlawful, and so determined in the end, notwithstanding the opinion and advice of the supervisors, for they may be mistaken ; but it can not be said to have been erected with that intent or unjustifiable purpose made necessary by the statute to constitute the offense for which a penalty has been imposed.

The question presented is quite clear of those involved in the cases cited by counsel for the plaintiff and arising under statutes of a different kind, like the case of State v. Hartfiel, 24 Wis., 60, where the intent with which the act is done constitutes no element of the offense for which the penalty is given or fine imposed. If the statute in question had contained no qualifying words descriptive of the offense and showing that the obstruction must at least have been wantonly created, or in bad faith, or without reasonable ground for the party to suppose that he had the right to erect it, then the position assumed by counsel might have „been correct, and the authorities he cites applicable. As it is, we think his position incorrect, and the cases relied upon inapplicable.

Neither do we think that it makes any difference that the action given to recover the penalty is in 'form a civil action. 'The question presented is the same as if it were recoverable by information or indictment, as, by the statute, all penalties for the sum of one hundred dollars or more must be recovered. R. S., ch. 155, sec. 7; 2 Tay. Stats., 1784, § 7.

Nor do we consider the public authorities without a remedy to vindicate the rights of the public and to determine the unlawfulness of the obstruction, in cases where the penalty prescribed by the statute is not recoverable. The overseer of the proper road district may cause the obstruction to be removed as provided by the statute, and thus put the land owner to his action to recover his damages, in which action the rights of the public may be adjudicated, and the unlawfulness of the obstruction, if such be its character, determined against the party erecting it. Many such actions have been instituted, and have come not unfrequently before this court, in which the sole question involved was, whether a lawful highway existed at the time and place of obstruction.

In discussing the question thus presented, which must be conceded to be of some delicacy and importance and not en - tirely free from embarrassment and difficulty, we have confined ourselves to the facts of the case before us, and to applying them to the statute under which the action is brought. We are convinced, upon those facts being shown to the satisfaction of the jury, that the action cannot be maintained.

Other grounds of error are assigned, but none of them will be considered, save only that the court is of opinion that the question put to the witness Beemer as to the circumstances un - der which he, as overseer, bad directed the witness Daniel Da-muth, Jr. to expend highway labor on • the road, should have been answered. The witness Damuth, Jr., had testified that Beemer, when overseer of highways in the district, had authorized him, Damuth, Jr., to work upon the road in question, and that he had done so. The -circumstances under which such work was directed by the overseer were not immaterial to the issue. The fact of work being done upon a road under authority of the proper officers of the town is strong evidence of a claim of right on the part of the public, and that the user was adverse to the owner of the land. This fact the plaintiff was permitted to give in evidence against the defendant; and when it had done so, the circumstances under which the direction was given or work authorized, were open to explanation on the part of the defendant, for the purpose of showing, if he could, that, although the work was done or the assent of the overseer procured, there was in reality no claim of right in behalf of the public or the officer, and so nothing to make the user adverse or in conflict with the right now asserted by the defendant.

A question of practice of some importance is also raised, which is, whether the defendant was properly permitted to go into evidence, or contest at all the existence of. the highway, on the trial in the circuit court. The action was commenced in justice’s court; and the defendant, at the time of putting in his answer in writing before the justice, denying the existence of the highway, and averring the locus in quo to be his soil and freehold, and in his sole possession, did not enter into the bond required by the statute to pay the judgment which the plaintiff might recover against him in the circuit court, on removal of the cause to that court, and so waived his defense that the premises in question were not a highway. Por the purposes of trial in the justice’s court, he admitted that the highway existed. The State v. Huck, 29 Wis., 202; Ashbough v. Walter, 24 id., 466. The cause was tried before the justice, and the plaintiff had judgment; whereupon the defendant appealed to the circuit court, and on the trial in that court, the defendant was allowed to give evidence and controvert the existence of the highway,- without objection on the part of the plaintiff, in the same manner as if the action had been removed to the circuit court, and there tried in pursuance of the statute requiring the bond. Counsel for the plaintiff now objects that this was irregular, and that the circuit court had no jurisdiction to try the question of title to the land, because that was a question over which the justice, from whose judgment- the appeal was taken, had no jurisdiction. The principle is invoked, that where the inferior court has no jurisdiction, the appellate court acquires none by the appeal. The principle is inapplicable, and the objection of counsel comes too late, being taken in this court for the first time. It is unlike the case where there is an entire want of jurisdiction in the inferior court. The circuit court had jurisdiction of the cause by virtue of the appeal, and could at all events hear and determine such questions as the justice was authorized to try. But, having such jurisdiction, the circuit court could even do more. It could allow an amendment of the pleadings so as to embrace a cause of action beyond the jurisdiction of the justice. This was expressly ruled in Dressler v. Davis, 12 Wis., 58, and Felt v. Felt, 19 id., 193. If no title to land had been pleaded in the justice’s court, the circuit court could have allowed an amendment of the answer, setting it up before trial on the appeal. The power of the circuit court to grant amendments upon such appeals is the same as that possessed by it in actions originally brought before it, and of which it has jurisdiction. Having jurisdiction to try and determine the title to land, the circuit court can direct an amendment in that particular, so as to put such title in issue, although the cause came before it by appeal from a justice’s court, where no issue of the kind could have been tried. Possessed of such power of amendment, it was competent for the circuit court, in a case like this, to receive the evidence without an amendment of the pleadings; for no amendment was necessary, and we have seen that there was no want of jurisdiction in the court to try the question.