State v. Surma ( 1953 )

Gehl, J.

(dissenting). The question whether under the provisions of sec. 174.10 (1), Stats., a criminal action may be maintained for the destruction of a dog without a tag was squarely before this court in State v. Garbe, 256 Wis. 86, 39 N. W. (2d) 743. We held that it may not and thus declared the meaning of the word “action” in the. statute. Facts are presented in the instant case which portray a picture of extreme cruelty, a picture much more repulsive and shocking than that exhibited in the Garbe Case, supra. But we did not give to the statute the construction which we did because it appeared that the act of the defendant was one of a lesser degree of cruelty. We said in clear terms and language that the statute means what it says, that (p. 89) “ 'No action shall be maintained for an injury to or the destruction of a dog without a tag, . . ” Manifestly, we found no ambiguity in the language. I find no need for judicial construction now.

If it be conceded that there is ambiguity in the statute, which I do not, still we need not labor through the opinions of courts of other jurisdictions in search of a definition of the word “action” as it is used in the statute. Indeed, we may not when it appears, as it does here, that the legislature has provided its own definitions. McCarthy v. State, 170 Wis. 516, 175 N. W. 785. One is found in sec. 260.03, Stats.:

“An action is an ordinary court proceeding by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Every other remedy is a special proceeding.”

This is a clear and unambiguous definition of what the majority considers is an ambiguous term.

Sec. 260.05, Stats., provides:

“Actions are of two kinds, civil and criminal. A criminal action is prosecuted by the state against a person charged with a public offense, for the punishment thereof. Every other is a civil action.”

Remedies in the courts are divided into (1) Actions, (2) Special proceedings, sec. 260.02, Stats. Actions are not divided into three classes — civil, criminal, and special proceedings. These provisions of the statutes remove from sec. 174.10 (1) any doubt which might be said to exist as to the meaning of the word “action” in sec. 174.10 (1).

Certainly the construction given to the word “action” by the court in the Garbe Case, supra, and which I agree is the only one permissible, would, as is evidenced in this case, produce an undesirable result. But the court may not encroach upon the field of the legislature whose exclusive function it is to amend the statute and thereby to supply what the majority says should be read into it.

“The rule that the clear letter of a statute will be departed from where absurd results would otherwise follow must be carefully applied. The danger is that of substituting the judgment of the court for that of the legislature as to what is sound or absurd. The rule is only one of construction; the fact that absurd or unjust results follow the literal application of the language simply justifies a search of the statute for further but perhaps less obvious indications of legislative intent. It does not, however, justify a court in amending the statute or giving it a meaning to which its language is not susceptible merely to avoid what the court believes are inequitable or unwise results.” State ex rel. Associated Indemnity Corp. v. Mortensen, 224 Wis. 398, 401, 272 N. W. 457.

“Courts are not responsible for the law. It is their province to declare and apply it and to construe statutes and constitutions in accordance with the will of the lawmaking power, where construction becomes necessary. When such construction has once been given to a law and finally established as a part thereof, it is as much a part of it as if embodied therein in plain and unmistakable language. State ex rel. Heiden v. Ryan, 99 Wis. 123. When that situation exists it is the province of the legislature alone to change the law. The court should not attempt it, whatever may be the notions of judges as to what the law ought to be.” Eau Claire Nat. Bank v. Benson, 106 Wis. 624, 627, 82 N. W. 604; Will of Roots, 228 Wis. 306, 309, 280 N. W. 672.

Since announcement of the decision in the Garbe Case, supra, there has been a session of the legislature and an opportunity for it to supply what the majority apparently considers an omission. For some reason best known to its members and with which we are not to be concerned, it has not amended the statute by limiting its application to civil actions.

“The legislature by not amending the statute has accepted the statute with the court’s construction incorporated therein. Manley v. Mayer, 68 Kan. 377, 379, 380, 75 Pac. 550. Assuming that the court has power to modify or limit its former construction, and thus, in effect, amend the statute, we consider that if a change in the statute should be made the change should be made by the legislature by amendment of the statute rather than by the court’s overruling the construction heretofore given.” Milwaukee County v. City of Milwaukee, 210 Wis. 336, 342, 246 N. W. 447; State ex rel. State Central Committee v. Board, 240 Wis. 204, 3 N. W. (2d) 123; Briggs & Stratton Corp. v. Department of Taxation, 248 Wis. 160, 21 N. W. (2d) 441.

The majority say that ambiguity appears in the statute by reason of the fact that there is a division of authority as to the meaning of the word. A number of cases are cited by the majority as having construed the term as referring only to civil actions. In not one of them does it appear that the court had available or was limited by a statutory definition such as we have in the instant case.

On the other hand, there have been cases in which the court was required to construe the term in the light of legislative definition and in which the argument for a restricted definition was rejected.' Such is State v. International Harvester Co. 79 Kan. 371, 99 Pac. 603, where the word “action” was defined in statutory terms almost identical with ours. So in People v. Elliott, 172 N. Y. 146, 64 N. E. 837, where the court held that the language of a statute identical with that contained in our sec. 260.03, Stats., renders it clear that the word includes both civil and criminal actions.

Thus we find that there is no division of authority on the precise question which we have before us. The majority have cited no case in which it has been determined by a court, supplied with a statutory definition as we are, that there is ambiguity in the word.

The majority would ignore the statutory definitions set forth above because they do not appear in ch. 370, Stats., entitled “Construction of Statutes.” Would they say that the chapter is all-inclusive? If so, what are we to do with the hundreds of definitions contained in dozens of the chapters of the statutes ? Are they to be ignored because they do not appear in ch. 370?

They would also reject the statutory definitions because they appear in ch. 260, Stats., entitled “Civil Actions, and Parties Thereto.” I would concede that in a proper case, where the meaning of a statute is left in doubt, resort might be had to its title in aid of construction. I would not concede, however, that the title is conclusive as to the meaning of a statute which is free from doubt or ambiguity, or that it should be resorted to for aid in an effort to distort the meaning of an unambiguous statute. 50 Am. Jur., Statutes, p. 300, sec. 312. Matters extrinsic may ,be resorted to for aid in the construction of a statute of doubtful meaning, but they may not be invoked to create an ambiguity.

As long ago as in 1937 the attorney general concluded that under sec. 174.10 (1), Stats., no criminal action is maintainable against one killing an unlicensed dog and so stated in an opinion found- in 26 Op. Atty. Gen. 434. That opinion would not, of course, justify the defendants in their act nor shield them from its legal consequences. Nor is it conclusive or binding. But we may not ignore it entirely. The legislature has met at least seven times since and has not seen fit to amend the statute. That is some evidence that it has been satisfied with the attorney general’s construction.

It is significant also that in 1949, twelve years after publication of the opinion of the attorney general, the attention of the legislature was brought to sec. 174.10, Stats., for in that year, by ch. 577, Laws of 1949, it amended its provisions. It would seem that if at that time the legislature were not satisfied with the construction of the attorney general it would have enacted additional amendments and thereby have rejected his interpretation. Or should we assume that the legislature is not concerned with the conclusions of an officer of government who is required by law to issue opinions for the assistance of the various departments ? I think not. Much less do I think that we should ignore the construction placed by this court upon an unambiguous statute and encroach upon the field of the legislature by amending one of its enactments because we are not pleased with its consequences. We should be content to confine our activities to the field which has been assigned to us.

Had the legislature intended the word “action” in sec. 174.10 (1), Stats., to exclude criminal actions it would have been a simple matter to have done so by restricting its meaning by the use of the term “civil actions” or “actions for damages.”

I am authorized to say that Mr. Justice Broadfoot and Mr. Justice Brown concur in this dissent.