Hawley v. Wallace

• Decision Date: 08 June 1917
• Docket Number: No. 20513[251].,20513[251].
• Citation: 137 Minn. 183,163 N.W. 127
• Parties: HAWLEY v. WALLACE.
• Court: Minnesota Supreme Court

137 Minn. 183

163 N.W. 127

HAWLEY

v.WALLACE.

No. 20513[251].

Supreme Court of Minnesota.

June 8, 1917.

Appeal from District Court, Hennepin County; Willard L. Converse, Judge.

Election contest by Edward W. Hawley against James F. Wallace. Judgment annulling contestee's election, and, from an order denying his motion for a new trial, he appeals. Order affirmed.

Syllabus by the Court

The evidence sustains a finding that the contestee in an election contest published, within the meaning of Gen. St. 1913, § 573, certain statements relative to the contestant.

Such statements were false statements relative to the contestant, were intended to affect voting at the election and tended to do so, were not trivial and unimportant but were deliberate, serious and material, and were in violation of Gen. St. 1913, §§ 573, 599, 600.

The charter of the city of Minneapolis, which provides that ‘the city council shall be the judge of the election of its own members,’ but does not make it the ‘sole’ or ‘exelusive’ judge, does not deprive the court of jurisdiction to entertain a contest under the general election law.

A party to an election contest, though the basis of the contest is the violation of the corrupt practices act and though it may result in an annulment of the election, is not entitled to a jury trial of the issues of fact under Constitution, art. 1, § 4, providing that ‘the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy’; the effect of this provision being to recognize and to continue the right of jury trial as it existed in the territory at the date of the adoption of the Constitution, there being at that time no right to a jury trial in similar proceedings, and such a proceeding not being a case at law within the meaning of the Constitution.

The Constitution, art. 1, § 7, which provides that no person ‘shall be compelled in any criminal case to be a witness against himself,’ does not forbid the contestant calling the contestee as a witness, but when so called the contestee will not be required to give testimony tending to incriminate himself. John N. Berg, of Minneapolis, for appellant.

Keith, Kingman, Cross & Wallace, of Minneapolis, for respondent.

DIBELL, C.

At the November 7, 1916, general election Edward W. Hawley, the contestant, and James F. Wallace, the contestee, were rival candidates for the office of alderman of the second ward of Minneapolis. Wallace received a substantial majority of the votes cast. Hawley contested the election upon the ground that Wallace violated the corrupt practices act. The court so found and directed the entry of judgment annulling his election. Wallace appeals from the order denying his motion for a new trial.

1. The statute prohibits the publication of any false statement in relation to a candidate which is intended to affect voting at any election or tends to do so. G. S. 1913, § 573. Just prior to the election a pamphlet containing statements relative to Hawley was circulated in the second ward. It is claimed by Hawley that this pamphlet was published or caused to be published by Wallace and this is an issue. It purports to have been printed and circulated by one Moody. Moody was a nephew of Wallace's wife, worked in Wallace's store, lived and boarded at the same house, and was actively interested in the campaign in Wallace's behalf. On the Saturday evening prior to the election Wallace knew that the pamphlet was in circulation and knew that it was of a character which made Hawley protest. The circulation continued and with his assent and assistance. He claims that he did not read the pamphlet. There was evidence of conversations had with Wallace after the election. What he said might be reasonably construed as an admission that he knew the general character of the pamphlet as early as Saturday and knew that some such a pamphlet was to be published and circulated. Moody was not a witness, nor was Madison, who was employed and paid by Wallace and was active in the circulation of the pamphlet.

The statute does not intend to punish one with the loss of an office to which he is elected because of statement circulated by his friends in which he does not participate. If it were otherwise serious results might come to a candidate, himself entirely innocent, and the statute thus he made a means of fraud. Whether the successful candidate participated in the forbidden publication is a question to be defermined upon a careful consideration and weighing of the evidence. A review of it in detail brings us to the conclusion that the court's finding that Wallace participated in the publication is sustained.

[2] 2. The statute is directed against ‘any false statement in relation to any candidate or proposition to be voted upon, which statement is intended to or tends to affect any voting at any primary or election,’ etc. G. S. 1913, § 573. The defeated candidate, or a specified number of voters, may contest. G. S. 1913, § 599. The successful candidate is not deprived of his office if the publication was without his knowledge or sanction, or if the act of which complaint is made was trivial or unimportant. G. S. 1913, § 600.

The pamphlet was entitled ‘An Alderman with Clutch Trouble.’ It was some twenty pages in length and contained matter in criticism of Hawley. Under the head of ‘An $847 Grab’ it was alleged that this amount was paid out of the permanent improvement fund for the condemnation of an alley and that Hawley participated in it; and the reason given for his doing so was that a person interested in the improvement, who would have had to help pay if it had been paid by special assessment against benefited property, was the brother of the owner of a leading local newspaper. Under the head of ‘Another Attempted Grab’ it was stated that Hawley used his influence as a member of the fire department committee in getting a contract for a friend and sought to have him paid without his completing the contract. Under the heading ‘Hawley Favors Public Service Corporations' it was said, among other things, that Hawley refused to allow a real estate owner to plat certain property until he had given a certain amount of the land for the private use of a public service corporation. There were charges, in rather general terms, that in placing city insurance Hawley favored companies in which his political friends were interested; that as a member of the committee on health he participated in an unfair and extravagant management of the health department; that he permitted certain of his political friends to conduct an offensive hide treating establishiment without the required license; that he sought to railroad through the council a proposition to purchase at an exorbitant price unfit land for the burial of the indigent dead; that he was engaged in a secret and improper settlement with the gas company of the city's litigation over gas rates; and that in his official acts he favored the electric company at the expense of the city's interests.

The statute is directed against false statements relative to facts. It is not intended to prevent criticism of candidates for office nor to prevent deductions and arguments from their official conduct unfavorable to them. It does not reach criticism which is merely unfair or unjust. It does reach false statements of specific facts. Many of the statements contained in this pamphlet were not untrue and many were not legally objectionable. There was a skeleton of truth in connection with nearly all of them, for Hawley was a member of the council and was concerned in the transactions of which the pamphlet purported to give an account. The charge throughout was that Hawley had been dishonest and unfaithful in the conduct of his office. No one could have misunderstood it. It was more than an insinuation. It was not all innuendo. There were direct statements and charges of fact. In so far as the charges exceeded criticism and were statements of specific acts of wrongdoing they were false statements of fact. They were intended to affect voting at the election and naturally tended to that result and they were not trivial or unimportant but were deliberate, serious and material within the meaning of sections 599 and 600. They were fully as much within the condemnation of the statute as those considered and held forbidden in Olsen v. Billberg, 129 Minn. 160, 151 N. W. 550.

[3] 3. The charter of the city of Minneapolis provides that ‘the city council shall be the judge of the election of its own members,’ etc. The council is not made the ‘sole’ or ‘exclusive’ judge. The contestee contends that the common council alone has authority to determine the election of its members and that the court is without jurisdiction. There is some conflict among the authorities. This court, in accordance with the weight of authority, has held that the district court has jurisdiction of a contest under the general election law. State v. Dowlan, 33 Minn. 536, 24 N. W. 188;State v. Gates, 35 Minn. 385, 28 N. W. 927;State v. Craig, 100 Minn. 352, 111 N. W. 3. See note 26 L. R. A. (N. S.) 207. This is the settled law of this state.

[4] 4. The contestee claims that the contest statute is unconstitutional because it does not provide for a jury trial. His contention is that under the Constitution he is entitled as of right to a jury trial. The Constitution, art. 1, § 4, provides that ‘the right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy,’ etc. From the beginning it has been held that the effect of this provision is to recognize the right to a jury trial as it existed in the territory at the time of the adoption of the Constitution and to continue such right unimpaired. Whallon v. Bancroft, 4 Minn. 109 (Gil. 70); St. Paul, etc., R. Co. v. Gardner, 19 Minn. 132 (Gil. 99), 18 Am. Rep. 334;Ames v. Lake Superior, etc., R. Co....