State, ex rel. Hunter v. Jurgensen

• Decision Date: 25 June 1938
• Docket Number: 30410
• Citation: 280 N.W. 886,135 Neb. 136
• Parties: STATE, EX REL. RICHARD C. HUNTER, ATTORNEY GENERAL, RELATOR, v. WALTER H. JURGENSEN, RESPONDENT
• Court: Nebraska Supreme Court

280 N.W. 886

135 Neb. 136

STATE, EX REL. RICHARD C. HUNTER, ATTORNEY GENERAL, RELATOR, v. WALTER H. JURGENSEN, RESPONDENT

No. 30410

Supreme Court of Nebraska

June 25, 1938

Quo warranto by the state, on relation of the attorney general against Walter H. Jurgensen, to determine by what right Walter H. Jurgensen assumed to act as lieutenant governor of the state of Nebraska. Office declared vacant.

Syllabus by the Court.

1. Where the occupant of a public office is found guilty of a felony and sentence is pronounced upon him by a court of competent jurisdiction, he has been convicted of a felony within the meaning of that term as used in section 23, art. 3 of the Constitution.

2. An error proceeding in a criminal case does not suspend the sentence within the legal meaning of that term, but does stay the execution of the sentence .

3. After verdict of guilty and sentence by trial court presumption of innocence ceases, and the law then presumes that the proceedings were regular and the conviction just.

Original action in quo warranto by the State, on the relation of Richard C. Hunter, Attorney General, relator, against Walter H. Jurgensen, to determine by what right Walter H. Jurgensen assumed to act as Lieutenant Governor of the state of Nebraska.

Office declared vacant.

Richard C. Hunter, Attorney General, Barlow Nye and Francis V. Robinson, for relator.

Richard F. Stout and Jay O. Rodgers, contra.

Heard before ROSE, EBERLY, DAY, PAINE and MESSMORE, JJ., and KROGER, District Judge, with CARTER, J., participating on briefs.

OPINION

KROGER, District Judge.

The state of Nebraska, on the relation of the attorney general, brings this action in quo warranto, as an original action in this court, to determine by what right Walter H. Jurgensen, the respondent, assumes to act as lieutenant governor of the state of Nebraska.

In his information the relator states that Walter H. Jurgensen was elected lieutenant governor of the state of Nebraska for the term commencing January 7, 1937, and qualified as such officer and entered upon the duties of such office; that on May 15, 1937, an information was filed in the district court for Lancaster county, Nebraska, charging the respondent with the commission of a felony; after arraignment and plea of not guilty, a trial was had before said court and a jury and on February 9, 1938, respondent was found guilty as charged; that on March 7, 1938, respondent's motion for a new trial was overruled and the court thereupon entered its judgment in the case and sentenced him to imprisonment in the Nebraska state penitentiary for a term of not less than two nor more than five years; that thereafter on March 9, 1938, respondent prosecuted a proceeding in error to the supreme court from such judgment and sentence, which is now pending. Relator states that by reason of the foregoing facts the office of lieutenant governor of Nebraska became vacant on March 7, 1938, but that notwithstanding such fact the respondent has and is now assuming to act as such officer. Relator prays that the court enter its judgment that the office of lieutenant governor of Nebraska has been vacant at all times since March 7, 1938, and that respondent has forfeited all claims to said office and that he be ousted and excluded therefrom.

To this information the respondent has filed his answer in which he admits the facts set out in the information, but asserts that no final order or judgment has been entered so as to constitute a conviction within the meaning of the Constitution of the state of Nebraska, due to the fact that respondent has prosecuted proceedings in error from such judgment and sentence, and his error proceeding has not been disposed of.

Thereupon relator moved for judgment on the pleadings.

As stated by respondent in his brief filed herein, there is but one issue involved and that is: Is the verdict of the jury and the order, judgment and sentence of the district court, from which verdict, order, judgment and sentence respondent has prosecuted a proceeding in error, a "conviction of a felony" within the meaning of section 23, art. III of the Constitution of Nebraska?

The Constitution provides in section 23, art. III: "All offices created by this Constitution shall become vacant by the death of the incumbent, by removal from the state, resignation, conviction of a felony, impeachment, or becoming of unsound mind."

While the question thus presented has not been passed upon by this court, it has been decided by the courts of last resort of a number of other states. McKannay v. Horton, 151 Cal. 711, 91 P. 598; State v. Langer, 65 N.D. 68, 256 N.W. 377; Attorney General v. Montgomery, 275 Mich. 504, 267 N.W. 550; State v. Redman, 183 Ind. 332, 109 N.E. 184; Matter of Obergfell, 239 N.Y. 48, 145 N.E. 323; State v. Levi, 109 W.Va. 277, 153 S.E. 587; State v. Chapman, 187 Wash. 327, 60 P.2d 245, 106 A. L. R. 640; Becker v. Green County, 176 Wis. 120, 135, 184 N.W. 715, 186 N.W. 584; Commonwealth v. Davis, 299 Pa. 276, 149 A. 176; Commonwealth v. Lockwood, 109 Mass. 323; State v. Alexander, 76 N.C. 231; Quintard v. Knoedler, 53 Conn. 485, 2 A. 752; State v. Fousek, 91 Mont. 448, 8 P.2d 791, 84 A. L. R. 303; Advisory Opinion to the Governor, 75 Fla. 674, 78 So. 673.

A comparison of constitutional or statutory provisions under consideration in those cases with section 23, art. III of the Nebraska Constitution, discloses that there is no material difference in their wording. With but one exception, the holding has been that, where a plea or verdict of guilty has been entered and the trial court has entered its judgment and sentenced the accused, there has been a conviction within the meaning of the term as used in the Constitution or statute providing that a public office shall become vacant upon conviction of a felony, and that such vacancy occurred notwithstanding the fact that a proceeding in error was taken or pending from such conviction. The basis of these decisions was succinctly stated in the case of State v. Fousek, supra, when the court said: "The reason for the enactment of section 511 was the underlying principle that the security of our government depends upon respect for laws and the confidence of the people in our public officers. The legislature has declared, in effect, that that confidence cannot extend to an officer convicted of a felony. State v. Levi, 109 W.Va. 277, 153 S.E. 587. Nor can the people generally have the proper respect for laws if their officers treat the laws with indifference." And to like effect were the remarks of the California court in the case of McKannay v. Horton, supra, wherein the court said: "No man has a property right in an office paramount to the public interest. He has a property right in the salary and emoluments of an office while he is capable of discharging and actually discharges its duties, but when by his fault or misfortune he is no longer able to render the service the public interests demand that he shall give way to some one who can. An official who is declared insane is simply unfortunate, but he ceases to be an official; an innocent man who is unjustly convicted of a felony is doubly unfortunate, but the fact that he may by means of an appeal ultimately succeed in establishing his innocence does not entitle him in the meantime to hold on to a public office which he is no more capable of serving than if he were insane. The law allows an appeal from a conviction of felony because, so far from being against public interest, it is promotive of the public interest that a person accused of crime should have every reasonable opportunity of vindicating his innocence. But if the person so convicted is the incumbent of a public office these considerations do not weigh in favor of retaining him in that position pending an appeal."

Another reason advanced by the cases cited herein is that, after plea or verdict of guilty and judgment and sentence by a court of competent jurisdiction, the presumption of innocence, which up until that time had existed in favor of the defendant, no longer prevails, but, on the contrary, the law from that time on presumes the proceedings to have been regular and the defendant to be guilty. Thus, in the case of State v Levi, supra, the supreme court of appeals of West Virginia in discussing this question used the following language: ...