Warren v. Commonwealth , 136 Va. 573 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The question presented for decision by the assignments of error will be disposed of in their order as stated below.

[1]. Did the trial court err in setting aside the verdict on the ground that it was contrary to the law and the evidence?

The question must be answered in the negative.

Since the verdict acquitted the accused upon all of the charges against him, if upon the law applicable to the uncontroverted evidence, the accused, during his current term of office, committed any one of the offenses specified in the statute (section 2705 of the Code) under which the proceeding was had, the verdict was contrary to the law and the evidence and was, therefore, properly set aside.

[2-4] Now it is true that in the matter of assessing persons, firms and corporations with the license taxes required by law (i. e., by the ordinances of the city of Hopewell and by statute), the accused, although a ministerial officer, was required to exercise a reasonable judgment of his own as to the law applicable and a reasonable discretion in delaying assessments a reasonable time in order to ascertain the facts relevant to the proper assessments to be made. And it is well settled that, such being the case, if the accused did not act corruptly or with evil intent, but honestly and with reasonable diligence in such matters, even if he was mistaken as to the law applicable, and erred in failing to make such assessments, he could not be regarded as guilty of any of the offenses specified in the rule against him, in so far as the third charge contained in the rule is concerned. 1 Bish. New Cr. Law (8th ed.), section 460 (1).

As said in the section of the learned work just cited, “One serving in a * * * capacity in which he is required to exercise a judgment of his own is not punishable for a mere error therein, or for a mistake of law. His aet to be cognizable criminally, or even civilly, must be wilful and corrupt.” (Italics supplied.)

Under the evidence the jury were warranted in finding that the accused did not act corruptly or with evil intent, but honestly and with reasonable diligence in the matters embraced in the third charge against him. Hence, we must conclude that the verdict of the jury was not contrary to the law or the evidence with re.spect to that charge, and the verdict should not have been set aside as to such charge.

[5] But with respect to the first and second charges contained in the rule, the situation is materially different. The official duty of the accused with respect to the matters embraced in those charges was purely ministerial; and, under the express and imperative provisions of the statute law on the subject, the accused, as to such matters, was intrusted with no discretion whatever. Under the plain mandate of the statute (2360 of the Code) commissioners of the revenue have no authority to issue licenses except upon the application “accompanied with the certificate of the treasurer * * that the amount of the tax * * has been deposited with him by the applicant;” and they have no authority, under any circumstances, to act for the treasurer in receiving such taxes. They are given by the statute no discretion in this particular. For them to act for the treasurer in receiving such taxes, from any motive whatsoever, is in direct violation of the statute on the subject and if allowed would annul and suspend the operation of the statute.

[6] The evidence shows, without conflict therein, that the accused was guilty of the first and second charges contained in the rule upon which the case was tried— that is to say, that during his current term of office the accused acted for the treasurer in receiving license taxes, signed the treasurer’s name to the certificates that the same had been paid to the treasurer and issued licenses upon the applications containing such certificates so signed. This was not only a plain violation of the law, but, as the evidence shows, without conflict, the accused well knew at the time that he did this that he was acting in violation of the law. It is true that the jury were warranted by the evidence in finding that his motive for so acting was not a corrupt or evil one—that he so acted solely with the purpose of accommodating applicants for licenses at times when the treasurer was not conveniently accessible, and for the better dispatch of business—and hence we must so find. But this is immaterial, since the statute conferred on the accused no discretion in the premises. Whatever inconvenience results to applicants for licenses and whatever impediment there may be to the dispatch of business arising from the statutory requirements on the subject, are the result of the imperative legislative requirements contained in the statute and they can be removed by the legislature alone by amendment or repeal of the statute in the particulars in question, and not by the commissioners of the revenue by conduct in violation of the statute.

[7] And it is obvious that it is of vital importance to the State and cities that the particular requirement of the statute in question should not be departed from by the commissioners of the revenue. The two offices of the commissioner of the revenue and of the treasurer, and the functions of assessing and collecting license taxes to be performed by the respective officers, are required by the statute to be kept separate. The reports of the commissioners of the revenue furnish the sole independent evidence by which the treasurer is charged and held accountable for the license taxes collected. Hence, obviously, the statute allows no consolidation of these two offices and no joint performance of the functions of collecting the taxes and issuing the licenses by a single officer in any ease, and hence the imperative provisions of the statute on the subject. The public convenience and the dispatch of the business are undertaken to be provided for by section 2374 of the Code, by stipulating the times the commissioners of the revenue shall attend court (at which the treasurer is expected to be present and readily accessible). If such provisions do not adequately serve their purpose, the remedy is by application to the legislature for amendment of the statute and not by having commissioners of the revenue take the law into their own hands.

[8] Where the thing done by the officer is purely ministerial and the officer is intrusted with no discretion in the premises, if he exceeds his authority and does an act officially for which there is not authority of law, he is guilty of malfeasance in office, although there is an entire absence of any corrupt or evil intention.

1 Bish. New Cr. Law (8th ed.), sec. 459; 2 Id., Ch. 4414 and especially sec. 978; Cutchin v. Roanoke, 113 Va. 452, 74 S. E. 403; Law v. State, 34 Utah 394, 98 Pac. 300; Bell v. Josselyn, 69 Mass. (3 Gray) 309, 63 Am. Dec. 741; Harris v. Hanson, 11 Me. 241; Cotie v. Lanes, 33 Conn. 109; Bradford v. Territory of Oklahoma, 2 Okla. 228, 37 Pac. 1061; Meehem on Public Officers, secs. 457-8.

In 1 Bish. New Cr. Law, sec. 459, supra, this is said: “Any act * * in breach of duty of public concern by one who has accepted public office is, within limitations about to be stated, a crime. Particularly is this so where the. thing is of a ministerial or other like nature, and' the officer is intrusted with no discretion. Citing numerous English and American cases. The limitations referred to are stated in the next section of this work (460), above cited and quoted from, and, so far as material to the case in judgment, refer to the distinction, above adverted to, between the doctrine applicable where the officer is required to exercise a judgment of his own and that applicable where the officer is not intrusted with any discretion.

In Cutchin v. Roanoke, supra (113 Va. 452), 74 S. E. 403, which was a proceeding for the removal of the mayor of the city of Roanoke, the following statements of the law are contained in the instructions given by the trial court, which were approved by this court, namely:

“The court instructs the jury that malfeasance in office is the doing of an act for which there is no authority or warrant of law; * * ”

“The court instructs the jury that if they believe from the evidence that the defendant has done or omitted to do what is charged in specifications 1 and 2 of the rule” (which was, in substance, that he had exceeded his authority and had done, without authority (of law, an act officially, as to which he was intrusted by law with no discretion), “he cannot excuse or justify himself for his conduct, even though he might have acted from honest convictions that he was doing what was best to minimize the evil. * * He has no right, power, or authority to annul any ordinance of the city, or suspend its operation as to any person or locality. * * ”

In Law v. Smith, supra (34 Utah 394, 98 Pac. 300), this is said: “* * it does net follow that the proof must show a specific intent to defraud in order to maintain a conviction for malfeasance in office. In State v. Lazarus, 39 La. Ann. 161, 1 So. 361, the ordinary definitions given to the term malfeasance by lexicographers are set forth as follows: * * the doing of what one ought not to do; the unjust performance of some act which the party had no right or which he had contracted not to do. * * The contention of the defense that the malfeasance * * charged must, as a condition precedent to removal’ (from office) ‘be proved to be criminal or corrupt, is manifestly erroneous. It is absolutely untenable either in reason or on authority.’

In Bell v. Josselyn, supra [69 Mass. (3 Gray) 509], this is said: “* * malfeasance is the doing of an act which a person ought not to do at all. 2 Inst. 107; 2 Dana Ab. 482; 1 Chit. Pl. (6th Am. ed.) 151; 1 Chit. Gen. Prac. 9.”

In Coite v. Lynes, supra (33 Conn. 109), this is said: “* * malfeasance is the doing of an act wholly wrongful and unlawful.”

Bradford v. Territory of Oklahoma, supra (2 Okla. 228), 37 Pac. 1061, was a proceeding for the removal of a county clerk from office. One of the duties of the clerk was to issue liquor licenses to applicants, but the statute provided that he should do so upon the payment of the license tax having been first made to the treasurer. The statute specified “wilful maladministration in office,” as a ground for removal from office. The court held that the act of the clerk in issuing the license prior to the payment of the tax to the treasurer constituted “wilful maladministration in office.” In the course of the opinion this is said:

“The law makes it the duty of the county clerk, after certain conditions have been performed by the applicant, to issue liquor license on payment of a specified sum of money into the county treasury. The applicant is not entitled to a license until this payment is actually made to the county treasurer. The law fixes the terms upon which an applicant may procure a license to sell liquor, and there is no authority vested in any officer to change or modify the statute. The license may be for a less time than a year, but no less sum than the annual license fee can be accepted for either a long or short time.

“The county clerk, in this case, is charged with having issued liquor licenses to applicants without requiring the payment of any sum to the county treasurer, and it is alleged that he accepted a sum himself from the applicant less than the required fee, and this sum he failed to pay over to the treasurer.

“This was a clear violation of his duties as a public officer and one that could not have been committed, except knowingly and wilfully. Wilful misconduct and violation of the statutory duties of office is maladministration in office, and is such a disregard of official duties as will, under the statutes, forfeit the right to the office and its emoluments, under the law as it existed at the time this proceeding was commenced * * * It is immaterial whether Bradford collected the money for the county and embezzled the funds; accepted the money paid him as bribes from the parties who procured the licenses, accepted it as a loan, or took it in good faith, with the purpose to pay it into the county treasury. * * ”

As appears from the foregoing quotation, the court in referring to the violation of the statute being done “wilfully” and to this constituting “wilful misconduct,” used the words “wilfully” and “wilful misconduct,” with the meaning, respectively, of “knowingly” and “misconduct known to be such at the time” by the officer. Such misconduct of an officer intrusted by the statute with no discretion in the premises, constitutes malfeasance, which, is the same thing as the knowingly doing acts of maladministration. This meaning being given by the court to the Oklahoma statute puts this case in-line with the current of authority on the subject.

[9] It is true that the weight of authority is to the effect that a corrupt or evil intent is essential to constitute “wilful misconduct” (State v. Meek, 148 Iowa, 671, 127 N. W. 1023, 31 L. R. A. [N. S.] 569, 570-1, Ann. Cas. 1912 C, 1075; 22 R. C. L. sec. 281, p. 571), “wilful” violation of the provisions of a statute (Spurr v. United States, 174 U. S. 728, 19 Sup. Ct. 812, 43 L. Ed. 1153), or “wilful neglect of duty” (State ex rel Brickell v. Hasty [Ala.], 63 So. 559, 50 L. R. A. [N. S.] 553, 560-1). But the Virginia statute (sec. 2705) contains no specification of affirmative “wilful” misconduct as ground for removal from office. And while it does include wilful “neglect to perform any duty imposed * * by any law of the State” among the offenses for which there may be removal from office, it also specified, in the alternative, “malfeasance” or “knowingly” to neglect to perform any duty imposed by any law of the State, as among such offenses. To constitute neither of the two last named offenses is a corrupt or evil intent essential, where, as aforesaid, the officer is not intrusted by law with any discretion. And those being the provisions of the Virginia statute, we are concerned, in dealing with the question under consideration, only with what constitutes “malfeasance” in office, where the officer is clothed with no discretion, but is required by the statute to conform his conduct to the plain provisions thereof, which define his authority, and specifically set out what and only what he is authorized to do.

The facts being as above stated, as shown by the evidence before the jury, without conflict in the evidence, and such being the law, the trial court was plainly right in setting aside the verdict as contrary to the law and the evidence, in so far as the first and second charges are concerned.

[10] 2. Did the trial court err in entering final judgment, after setting aside the verdict, instead of awarding a new trial?

The question must be answered in the affirmative.

The correctness of this conclusion depends, of course, upon whether section 6251 of the Code embraces such a proceeding as that before us. We are of opinion that it does not.

The material provisions of the section just mentioned are as follows:

“When the verdict of a jury in a civil action is set aside by a trial court upon the ground that it is contrary to the evidence, or without evidence to support it, a new trial shall not be granted if there is sufficient evidence before the court to enable it to decide the case upon its merits, but such final judgment shall be entered as to the court shall seem right and proper.” (Italics supplied.)

What is a civil action has been the subject of much division of opinion under varying circumstances. But, as said by Mr. Bishop, (1 Bish. New Cr. Law [8th ed.], sees. 32, 33):

“Section 32. * * we have proceedings neither strictly civil nor strictly criminal, but quasi the one or the other.

“Section 33. * * * The criminal and civil departments of the law somewhat blend; consequently the line dividing them is neither at all points distinct, nor drawn by the hand of an exact science. And when there is no doubt to which department a particular controversy belongs, it may still be so like something else of the other department as to be governed partly by its rules, while yet it follows the rules of its own department in other respects.”

[11] As laid down in 22 R. C. L., sec. 284, p. 573, a statutory proceeding for removal from office (such as that before us), belongs to the civil department of the law and is regarded as “a civil and not a criminal proceeding.” Nevertheless, as stated in the same section of this valuable work, such a proceeding is regarded “as quasi criminal in its character.”

The power of the courts to remove from office in proceedings under statutes conferring that authority is defined by 29 Cyc. p. 1406 (b) as “a disciplinary power.” In the same section of that work (pp. 1406-7) this is said: “Such methods of removal are often treated as partaking of the nature of a criminal action. At the same time, the strictness which has to be observed in criminal proceedings is not usually required. * *” It is held by many decisions, cited and relied on before us for the Commonwealth, that, since the primary object of the statutes providing for removal from office is the removal of the officer from his official position, and not the punishment of the officer individually, unless the removal statute, or other statutory law affecting the subject contains provisions requiring a different holding, a prosecution under the statute will not be regarded as a criminal ease, and the proceedings in the trial court under such statute will be held to be governed by the rules which are applicable in civil actions. For example, the right to trial by jury, if not expressly provided for in the statute, the constitution of the jury, the rule as to the burden of proof, the direction or refusal of direction of verdicts, the granting or refusing to grant new trials, etc., etc., will be governed by the rules applicable in the particular jurisdiction to civil actions, rather than those applicable to criminal cases. Territory v. Sanches, 14 N. M. 493, 94 Pac. 954, 20 Ann. Cas. 109; State v. Medler, 17 N. M. 644, 131 Pac. 976, Ann. Cas. 1915 B. 1141; State v. Foster, 32 Kan. 41, 765, 3 Pac. 534; Fields v. State (Tenn.), Martin & Yerg. 168; Skeen v. Craig, 31 Utah 20, 86 Pac. 487; Skeen v. Paine, 32 Utah 295, 90 Pac. 440; State v. Brown, 24 Okla. 433, 103 Pac. 762; State v. Leach, 60 Me. 58, 11 Am. Rep. 172. See also Jernigan v. Com., 104 Va. 850, 52 S. E. 361, for a discussion of the difference between civil and criminal proceedings. But these cases involve statutory provisions and rules of procedure not the same as those contained in the Virginia statute under consideration.

So that, notwithstanding the decisions cited, the question remains whether the proceeding before us is “a civil action” within the meaning of the Virginia statute (section 6251), upon which depends the authority or lack of authority of the trial court to enter final judgment upon setting aside the verdict.

This is a new statutory provision which appeared in our law for the first time in the present Code. Previously, the trial courts had no authority in any case, civil or criminal, to enter final judgment upon setting aside a verdict; but were confined to the granting of a new trial in such cases. The revisors’ note to this section is as follows:

“This section is new, and is intended to apply to all civil actions, and, of course, to motions under section 6046, as these have been held to be actions. The object is to end the action at once and put the losing party to his writ of error, thus avoiding the temptation to perjury and in many eases the unnecessary expense of a second trial.

“The further effect of the section is that it will probably be used as a substitute for a demurrer to the evidence. Instéad of demurring to the evidence, the trial will proceed to verdict, and the losing party will move to set aside the verdict because contrary to the evidence or without evidence to support it; and if the court sustains the motion, it will enter judgment accordingly, and the party in whose favor the verdict was' rendered will then apply for a writ of error. The verdict is not robbed of any of the weight heretofore given to the verdict of a jury, but the judgment of the appellate court, instead of remanding the ease for a new trial, will be a final judgment, just as it was under the former law on a .demurrer to the evidence. The advantage of getting rid of the additional trial seems to be manifest.

“This section should be read in connection with section 6363.”

[12] From the language of the revisors’ note, and the use of the technical terms “civil action” in the statute, we think that the statute means to embrace only private personal actions, and not such a quasi criminal statutory proceeding as that before us, which is not a private or personal action—is not purely private or civil—but one which is primarily public in its nature, which although not a criminal case is one highly penal in its nature, and one in which the Commonwealth is the party plaintiff.

“Civil action” is thus defined in 7 Cyc., pp. 151-2: “In civil law, a personal action, which is instituted to compel payment, or the doing of some other thing which is purely civil. At common law, an action which has for its object the recovery of private or civil rights or compensation for their infraction; *

Upon consideration of the question of whether a contested election proceeding is an “action” within the meaning of certain sections of the Code then in force, authorizing trial courts to enter judgment for costs “upon any motion,” “upon any interlocutory order or proceeding” and in “any action,” this court, in West v. Ferguson, 16 Gratt. (57 Va.) 270, at p. 272, said this:

“Unless the proceedings * * * in the ease of a contested election can be considered as a ‘motion,’ or an ‘action,’ or an ‘interlocutory order or proceeding,’ it is clear that they are not embraced by either of these sections.

“They certainly do not fall within the terms ‘interlocutory order or proceedings;’ and it seems equally clear that they are neither a ‘motion’ nor an ‘action.’ These words have a well understood technical meaning, and cannot, by any stretch of construction, be made to embrace such proceedings as are directed to be had in cases of ■ contested elections. These proceedings are novel and peculiar in their character, and seem designed rather for the purpose of ascertaining, on behalf of the public, who had been duly elected, than of enabling rival candidates to litigate on their own behalf the question of right to an office. * * *” (Italics supplied.)

“Proceedings like these cannot be regarded as a ‘motion’ or an ‘action’ within the purview of the statutes regulating costs between parties. * * *

“The county court in rendering such judgment exceeded its jurisdiction * *.”

We think the principle announced in the observations just quoted is applicable to the ease in judgment upon the question under consideration.

The case will, therefore, be reversed and remanded for a new trial, upon the first and second charges embraced in the amended rule, and upon those charges only, to be had not in conflict with the views expressed in this opinion.

Reversed and remanded for a new trial.