State ex rel. Gaynon v. Krueger

• Decision Date: 01 July 1966
• Docket Number: No. 3,3
• Citation: 143 N.W.2d 437,31 Wis.2d 609
• Parties: STATE of Wisconsin ex rel. Irwin E. GAYNON, Appellant, v. John E. KRUEGER, Judge of Branchof County Court in and for Milwaukee County, Wisconsin, Respondent.
• Court: Wisconsin Supreme Court

Page 437

143 N.W.2d 437

31 Wis.2d 609

STATE of Wisconsin ex rel. Irwin E. GAYNON, Appellant, v. John E. KRUEGER, Judge of Branch No. 3 of County Court in and for Milwaukee County, Wisconsin, Respondent.

Supreme Court of Wisconsin.

July 1, 1966.

Rehearing Denied Sept. 12, 1966.

Paul P. Lipton, Aaron D. Levine, Milwaukee, Ray T. McCann, Milwaukee, of counsel, for appellant.

Bronson C. La Follette, Atty. Gen., Wm. A. Platz, Asst. Atty. Gen., Madison, Hugh R. O'Connell, Dist. Atty., Robert E. Sutton, Asst. Dist. Atty., Milwaukee Co., Milwaukee, for respondent.

HALLOWS, Justice.

This appeal raises the question of whether the failure or refusal to make an income tax return or the making of a false or fraudulent return under sec. 71.11(42), Stats., is a felony or a misdemeanor.

As a preliminary question, the respondent argues the appeal should be dismissed because a writ of prohibition is the wrong remedy. We think not. Traditionally, this writ was used to keep an inferior court from acting outside its jurisdiction when there was no adequate remedy by appeal or otherwise. State ex rel. Mitchell v. Superior Court (1961), 14 Wis.2d 77, 109 N.W.2d 522; State ex rel. Kiekhaefer v. Anderson (1958), 4 Wis.2d 485, 90 N.W.2d 790; State ex rel. Peterson v. County Court (1961), 13 Wis.2d 37, 108 N.W.2d 146; State ex rel. Fieldhack v. Gregorski (1956), 272 Wis. 570, 76 N.W.2d 382. But, as pointed out in Drugsvold v. Small Claims Court (1961), 13 Wis.2d 228, 108 N.W.2d 648, the writ has been expanded to cover cases of 'nonjurisdictional error when the appeal may come too late for effective redress, or be inadequate and there is a need for such intervention to avoid grave hardship or a complete denial of the rights of a litigant.' See also State ex rel. Reynolds v. Circuit Court (1961), 15 Wis.2d 311, 112 N.W.2d 686 113 N.W.2d 537; State ex rel. Kiekhaefer v. Anderson, supra.

This is an unusual case. The appellant won a dismissal of the charges in the county court. Normally one would expect the state to take an appeal from such order as only a question of law was involved. However, the state secured a writ of mandamus which required the county court to hold a preliminary hearing to which the appellant was not a party and which as effectively destroyed his victory as a reversal would have done on appeal and probably much sooner. From the order granting the writ, the appellant could not appeal. The basic issue raised in this prohibition proceeding is the same, i.e., the jurisdiction of the county court to hold a preliminary examination on the charge. Since a complete defense appears on the face of the complaint and the county court has no jurisdiction to hold a preliminary hearing if the offense is a misdemeanor, we think the remedy 'by appeal or otherwise' comes too late for effective redress and is wholly inadequate for the protection of the rights of the appellant. The compelling need for an early determination of this question of law is as obvious as it was for the determination of a similar jurisdictional question resolved by the original prohibition proceedings in this court in State ex rel. Sucher v. County Court (1962), 16 Wis.2d 565, 115 N.W.2d 611.

The question of whether a violation of sec. 71.11(42), Stats., ¹ is a felony or a misdemeanor has never been decided by this court although the statute has existed for over 50 years. We hold the violation of this section constitutes a misdemeanor and not a felony.

When this section was created the legislature intended its violation to be a misdemeanor. the section has existed in substantially the same form as when it was first enacted as sec. 1087m--12 as a part of the income tax law by c. 658 of the Laws of 1911. Although a penalty is provided, the grade of the offense and the place of imprisonment is not designated. By contrast to this section sec. 1087m--24 of that income tax act which punished the divulgence of information by state employees expressly provided the state prison as the place of imprisonment. At the time of the passage of the income tax act a 'felony' was defined as 'an offense for which the offender, on conviction, shall be liable by law to be punished by imprisonment in a state prison.' Sec. 4637, Stats.1911. Obviously, if the legislature intended a violation of sec. 71.11(42) to be a felony it would have made the place of imprisonment the state prison as it did in the companion section.

In addition, at the time of the passage of the act it was a generally recognized rule of construction that statutes which created crimes but did not expressly designate its grade or the place of imprisonment created only misdemeanors and not felonies. 24B C.J.S. Criminal Law § 2000b, p. 692. In People v. Hightower (1953) 414 Ill. 537, 112 N.E.2d 126, the court stated the failure to specify a place of confinement in a criminal statute raised a conclusive presumption that the confinement shall be in the county jail and the offense so punishable is a misdemeanor. In State v. Di Paglia (1955), 247 Iowa 79, 71 N.W.2d 601, 49 A.L.R.2d 1223, the court held an offense punishable by imprisonment not to exceed 10 years was a misdemeanor because the statute neither specified the grade of the offense nor the place of imprisonment.

Likewise, the maximum length of the imprisonment of 'not exceeding one year' was normally a punishment associated with a misdemeanor. As early as 1935 the attorney general was of the opinion the identical penalty provision applied to the practice of medicine without license created a misdemeanor rather than a felony. 24 Opin.Atty.Gen. 451. Likewise, the attorney general in the past has applied the misdemeanor statute of limitations in construing income tax offenses. 25 Opin.Atty.Gen. 237. Besides these attorney general's opinions, this court called a violation of sec. 71.11(42) a misdemeanor in State v. McKinnon (1953), 263 Wis. 413, 57 N.W.2d 404. On the other hand it must be noted that in State ex rel. Marachowsky v. Kerl (1951), 258 Wis. 309, 45 N.W.2d 668, a preliminary examination was held for a violation of a companion income tax section containing the identical penalty. In neither of these cases was the question of whether the violation was a felony or misdemeanor raised or desided. Ironically, the attorney for the appellant in his article entitled 'Wisconsin Criminal Tax Fraud Problems,' 48 Marquette Law Rev. 1, characterizes the offense as a felony.

A comparison with other sanctions in tax laws while not conclusive is indicative of the legislature's intent not to create a felony for the failure to file or the filing of false income tax returns, because it shows a pattern of misdemeanors for violations of such laws. When the sales tax was adopted in 1961 the failure to file a return and the filing of a false return for such tax was expressly provided to constitute a misdemeanor but no penalty or place of punishment was stated. Sec. 77.60(6), Stats. In such cases, sec. 939.61, ² Stats., is applicable by necessary reference. Filing of a fraudulent gift-tax return is expressly designated a misdemeanor by sec. 72.81(8), Stats., which was enacted in 1937 and provides for a fine of not less than $100 or more than $5,000 or by imprisonment not to exceed one year, or both. Although designating the grade and the penalty of the offense, this section does not state the place of imprisonment. In 1965, sec. 78.73(4), Stats., which provided when enacted for a penalty for the failure to report or pay fuel tax of a fine not exceeding $5,000 or by imprisonment in the county jail for not less than one year nor more than 10 years, or both, was amended by ch. 7 of the Laws of 1965 to reduce the imprisonment to a period not exceeding one year. These three tax-law violations are misdemeanors either because they are expressly so designated or because the place of imprisonment is specified to be the county jail. However, sec. 71.11(42) was as much a misdemeanor by the intention of the legislature and by the rules of construction of the statutes in existence when it was created as the other tax violations created later and expressly designated misdemeanors.

However, it is argued by the state (respondent) that a violation of sec. 71.11(42) constitutes a felony because it fixes a maximum imprisonment of not more than one year without stating the place of confinement. Because sec. 959.044, Stats., ³ authorizes imprisonment either in the state prison or the county jail in such cases, it is argued sec. 939.60, Stats., ⁴ which defines a felony as a crime punishable by confinement in a state prison is applicable and the offense must now be considered a felony.

We reject the state's contention that the enactment of sec. 353.27(2) (now sec. 959.044, Stats.) by ch. 154 of the Laws of 1945 changed the grade of the offense for violating sec. 71.11(42) from a misdemeanor to a felony. This section was not legislation for the purpose of changing grades of crimes but was as its caption indicates to designate the 'Place of imprisonment when none expressed' in the section creating the crime. It deals solely with the place of imprisonment for felonies and misdemeanors and should not be used retroactively as a whiplash to change the grade of an offense by reference to sec. 939.60. Not all crimes punishable in prison are felonies.

The passage of sec. 959.044 overruled the holdings in Veley v. State (1927), 194 Wis. 408, 216 N.W. 522, and Grimes v. State (1940), 236 Wis. 31, 293 N.W. 925, and solved administratively the problems therein presented. in Veley the court held a conviction for issuing a worthless check which was a misdemeanor under sec. 943.24 (then sec. 343.401) could only be served in a county jail. Grimes, also a worthless-check case, likewise held that one convicted of a misdemeanor could not be sentenced to the state prison. Conversely, in Boehm v. State (1926), 190 Wis. 609, 209 N.W. 730, it was held that the only place a felony could be served was...