Fehl v. Jackson County

• Decision Date: 11 September 1945
• Citation: 161 P.2d 782,177 Or. 200
• Parties: FEHL <I>v.</I> JACKSON COUNTY
• Court: Oregon Supreme Court

177 Or. 200

161 P.2d 782

FEHLv.

JACKSON COUNTY

Supreme Court of Oregon.

Argued May 31, 1945.

Affirmed September 11, 1945.

Pleading

1. Where plaintiff demurs to answer as submitting no defense to complaint, circuit court and Supreme Court, on appeal from judgment for defendant after overruling of demurrer and plaintiff's refusal to plead further, must believe that averments of answer state truth.

Judges

2. Burglary is an "infamous crime", on county judge's conviction of which such office becomes vacant under statute.

Judges

3. The statute providing that office shall become vacant on incumbent's death, resignation, removal, or conviction of infamous crime is not penal, and its purpose is not to invoke forfeiture, but to dismiss for cause an official convicted of infamous crime, whereupon office is vacated without necessity for removal suit.

Constitutional law

4. The constitutional amendment, vesting judicial power in Supreme Court and other courts created by law, repealed constitutional provision vesting such power in Supreme Court, circuit courts, and county courts, so that county court judge is not incumbent of constitutional office and hence not exempt from application of constitutional provision authorizing dismissal from office for corruption, malfeasance or delinquency and statute declaring office vacant on incumbent's conviction of infamous crime, such as burglary.

Judges

5. One elected to and assuming office of county judge, but convicted of burglary, sentenced to and incarcerated in state penitentiary, adjudged insane, and committed to state hospital during his term, was barred from recovering salary accruing after such conviction by statute prohibiting allowance of claims and drawing of warrants on state funds for services until actual rendition thereof.

                  See 30 Am. Jur. 736
                  16 C.J.S., Constitutional Law, § 29
                

Before BELT, Chief Justice, and ROSSMAN, KELLY, BAILEY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Jackson County.

H.K. HANNA, Judge.

Action by Earl H. Fehl against Jackson County for a balance alleged to be due plaintiff as emoluments of the office of county judge. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

Roy R. Hewitt, of Salem, for appellant.

George W. Neilson, of Medford (Allison Moulton, of Medford, on the brief), for respondent.

ROSSMAN, J.

This is an appeal by the plaintiff from a judgment of the circuit court entered in favor of the defendant after a demurrer had been overruled to the answer and the plaintiff had declined to plead further. According to an unchallenged recital of the judgment, the parties stipulated that "the issues herein could be determined on demurrer to the answer."

The complaint alleges that November 8, 1932, the plaintiff was elected judge of the County Court for Jackson County for a six-year term beginning January 1, 1933; he qualified for the office; January 1, 1933, "he assumed said office and became entitled to hold the same and to receive the emoluments to and including" January 2, 1939; in that period the salary of his office was $2,000 per year; and "no part of the emoluments of said office, the sum of $12,000, has been paid save and except the sum of $1,000." Judgment was demanded for $11,000, together with interest.

The answer admits that the salary of the judge of the County Court for Jackson County during the period mentioned in the complaint was $2,000 per year; that the plaintiff was elected to that office for a term beginning January 1, 1933; and that upon that day he assumed the office. All other averments of the complaint are denied. The answer submits four affirmative defenses.

The first defense alleges that February 20, 1933, the vault in the Jackson County courthouse containing ballots cast in the election of November 8, 1932, was forcibly entered and ballots were unlawfully removed; March 15, 1933, the plaintiff, Fehl, and others were indicted by the Jackson County grand jury and charged with burglary not in a dwelling, based upon the felonious taking of the ballots; later the venue was changed to Klamath County; July 24, 1933, the cause came on for trial in the Circuit Court for Klamath County; August 4, 1933, Mr. Fehl "was convicted in the said court of the crime of Burglary Not in a Dwelling"; August 7, 1933, he was sentenced to a term of not to exceed four years in the state penitentiary; August 14, 1933, he signed a "waiver wherein and whereby he waived all of his rights to appeal to the Supreme Court of the State of Oregon in the said criminal action or to demand a retrial of said cause and did request that he be removed from the Klamath County jail in Klamath County, Oregon, to the Oregon State Penitentiary at Salem, Oregon, in order to commence serving said sentence"; and, pursuant to the judgment, Fehl was incarcerated in the Oregon penitentiary until his sentence was served. Continuing, the answer alleges that August 7, 1933, the Honorable Julius L. Meier, Governor of this State, appointed Mr. Earl B. Day county judge of Jackson County for the remainder of the term for which Mr. Fehl had been elected. These averments further state that November 6, 1937, a complaint was filed in the County Court for Jackson County which alleged that Mr. Fehl was insane and unsafe to be at large; later the cause came on for a hearing; December 20, 1937, the court adjudged Mr. Fehl insane and committed him to the Oregon State Hospital; the adjudication of insanity was appealed to this court where it was affirmed July 12, 1938 (In re Fehl, 159 Or. 545, 81 P. (2d) 130); and the plaintiff remained a patient in the state hospital until June 17, 1941.

Other parts of this defense state that the aforementioned judgment of conviction suspended the plaintiff's civil rights and forfeited his right to the office of judge of the county court. They also allege that the aforementioned Earl B. Day was entitled to and was paid the salary of judge of the county court for Jackson County from the time of his appointment to that office until the close of the term.

The second, third and fourth affirmative defenses, we shall epitomize very briefly. The one alleges that Roy M. Parr recovered a judgment against Fehl in the sum of $15,000 on March 8, 1932, in the Circuit Court for Jackson County, and that later writs of execution were issued upon the judgment, followed by notices of garnishment which were served upon the county clerk of Jackson County. The third alleges that in the aforementioned criminal action the circuit court awarded the defendant in this case judgment against Fehl in the sum of $3,962.35 (see State v. Fehl, 152 Or. 104, 52 P. (2d) 1118) and that only $3,246.10 has been paid upon the judgment. The fourth pleads the statute of limitations.

1. The demurrer filed by the plaintiff was predicated upon a contention that the averments of the answer submitted no defense to the complaint. Under the circumstances, the circuit court was required to believe, and we are likewise obliged to believe, that the averments of the answer state the trust.

Article VII, § 6, Constitution of Oregon, says:

"Public officers shall not be impeached; but incompetency, corruption, malfeasance, or delinquency in office may be tried in the same manner as criminal offenses, and judgment may be given of dismissal from office, and such further punishment as may have been prescribed by law."

Article II, § 3, states in part:

"The privilege of an elector shall be forfeited by a conviction of any crime which is punishable by imprisonment in the penitentiary."

2. Section 81-2003, O.C.L.A., says:

"Every office shall become vacant on the occurring of either of the following events before the expiration of the term of such office:

(1) The death of the incumbent.

(2) His resignation.

(3) His removal.

* * *

(5) His conviction of any infamous crime, or of any offense involving a violation of his oath.

* * *"

The crime of which this plaintiff was convicted was burglary; we quote from § 23-513, O.C.L.A.:

"If any person * * * shall break and enter any building * * * in which any property is kept, with intent to steal therein, or to commit any felony therein, such person shall be deemed guilty of burglary, and upon conviction thereof shall be punished by imprisonment in the penitentiary not less than two nor more than five years."

Burglary is an infamous crime: United States v. Moreland, 258 U.S. 433, 66 L.Ed. 700, 42 S.Ct. 368, 24 A.L.R. 992; and see p. 1002 of the annotation in the volume last cited. See also 12 C.J.S., Burglary p. 664, § 1 (b); 14 Am. Jur., Criminal Law, 755, § 4; Bouvier's Law Dictionary (Rawle's 3rd Rev.) 1553; and 21 Words and Phrases (Perm. Ed.) 251, 252.

Section 23-1406, O.C.L.A., reads:

"A judgment of imprisonment in the penitentiary for any term less than for life suspends all the civil rights of the person so sentenced, and forfeits all public offices and all private trusts, authority, or power during the term or duration of such imprisonment."

Section 23-101, in keeping with the paragraph just quoted, defines a crime as:

"An act or omission forbidden by law, and punishable upon conviction by either of the following punishments:

(1) Death;

(2) Imprisonment;

(3) Fine;

(4) Removal from office;

(5) Disqualification to hold and enjoy any office of honor, trust, or profit under the constitution or laws of this state."

The two sections of our laws last quoted were enacted in 1864 as parts of the penal code. Their purposes are penal.

3. Section 81-2003 was paragraph 42 of an act adopted in 1870, which consisted of eight chapters divided into forty-eight paragraphs. The 1870 act pertained to the public office of this state. Some of its provisions specified the needed qualifications of voters, others provided for general elections and some others set forth the procedure governing election contests. Still other parts regulated such matters as resignations from public office, vacancies in...