State v. Todd

• Decision Date: 21 November 1947
• Docket Number: No. 34544.,34544.
• Citation: 225 Minn. 91,29 N.W.2d 810
• Parties: STATE ex rel. ARPAGAUS et al. v. TODD.
• Court: Minnesota Supreme Court

29 N.W.2d 810

225 Minn. 91

STATE ex rel. ARPAGAUS et al. v. TODD.

No. 34544.

Supreme Court of Minnesota.

November 21, 1947.

Quo warranto proceeding by the State, on the relation of R. C. Arpagaus and Philip A. Sauer, Jr., relators, against George Todd, respondent, to test the respondent's right to office of Alderman for the Twelfth Ward of the City of Minneapolis.

Writ discharged.

Karl H. Covell and Richard H. Bachelder, both of Minneapolis, for relators.

Leonard, Street & Deinard and Douglas Hall, all of Minneapolis, for respondent.

MAGNEY, Justice.

An information in the nature of quo warranto to test the right of respondent to the office of alderman for the twelfth ward of the city of Minneapolis was filed in this court, and a writ issued. The proceeding was instituted with the consent of the attorney general by private relators who are residents, voters, and taxpayers of said ward.

On November 29, 1946, the city council of Minneapolis appointed George Todd, respondent here, to fill a vacancy in the office of alderman of the twelfth ward. At the next general city election, held June 9, 1947, Todd was elected for a term commencing on the first Monday of July 1947 and expiring on the first Monday of July 1949.

On December 22, 1930, in the United States district court for Minnesota, respondent entered a plea of guilty to an indictment charging him with the crime of illegally manufacturing intoxicating liquor. The court entered its judgment of conviction, and respondent served a sentence in prison.

On June 28, 1947, between the time of his election and the time of taking office, respondent procured a pardon from the President of the United States for said crime and his conviction therefor for the purpose of restoring him to his civil rights.

Under federal law, the crime for which respondent was convicted was a felony. Under the laws of Minnesota in force at the time of his conviction, it was a misdemeanor.

Minn.Const. art. 7, § 2, provides:

"Sec. 2. No person not belonging to one of the classes specified in the preceding section; no person who has been convicted of treason or any felony, unless restored to civil rights; and no person under guardianship, or who may be non compos mentis or insane, shall be entitled or permitted to vote at any election in this State." (Italics supplied.)

Section 7 of the same article provides:

"Every person who by the provisions of this article shall be entitled to vote at any election shall be eligible to any office which now is, or hereafter shall be, elective by the people in the district wherein he shall have resided thirty days previous to such election, except as otherwise provided in this Constitution, or the Constitution and law of the United States." (Italics supplied.)

Eligibility for any public office in Minnesota is thus expressly made to depend upon the right to vote. Relators contend that respondent, because of his conviction in the federal district court of violation of a law which is classified as a felony under the federal statutes, was ineligible to hold public office and was not entitled to vote at the June 9, 1947, election, and that therefore he is not eligible to hold the office of alderman to which he was elected at that time. They claim that the pardon given respondent by the President of the United States between the time he was elected and the time his term commenced does not alter the situation.

1. The first question presented is whether these two resident voters and taxpayers of a city ward who claim no right or interest different from that of any other resident voter and taxpayer of the ward can maintain a proceeding of this kind in this court to secure the ouster of respondent from office.

Respondent contends that these private relators were not entitled to bring this action because (a) they had no interest in the matter different from that of any other member of the public; (b) they had other remedies, such as an election contest or an action to bar respondent's name from going on the ballot; and (c) the public interest did not require the action to be brought. These were pertinent questions for this court to consider in determining whether it would exercise its discretion in favor of permitting these relators to proceed. However, since this court has already permitted the information for the writ to be filed and has upon that information issued its writ, it has already exercised its discretionary power favorably to relators and, in the exercise of that discretion, has determined that these private relators have a right to bring this proceeding and that the public interest and welfare requires this court to entertain it. The rule was laid down in State ex rel. Young v. Village of Kent, 96 Minn. 255, 258, 104 N.W. 948, 949, 1 L.R.A.,N.S., 826, 6 Ann. Cas. 905, where this court said:

"We are of the opinion that the court exhausts its discretion when it exercises it upon the preliminary application for leave to file the information."

It further stated (96 Minn. 271, 104 N. W. 955):

"The principle is thus firmly established in this state that the granting or withholding of leave to file an information at the instance of a private relator, or of a private relator with the consent of the Attorney General, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made, even though there is a substantial defect in the title by which the office or franchise is held." (Citing cases.)

These preliminary and jurisdictional questions have therefore already been passed upon and disposed of.

2. Having thus passed the jurisdictional questions raised by respondent, we are confronted with the disposition of the case on its merits. The question presented is whether respondent is now qualified to hold the office to which he was elected, despite his conviction in 1930 in a federal district court of an offense committed in Minnesota which was a felony under the federal law, but only a misdemeanor under the Minnesota law.

The authorities are not in agreement on this question. We shall not attempt to discuss all the cases cited by counsel. It seems unnecessary to do so. We shall, however, consider the leading cases upon which they rely.

State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, cited by relators, supports their position. There, one of the justices wrote a strong dissenting opinion. The facts in that case are as follows: Langer, the respondent, was elected governor of North Dakota in November 1932. Olson, the relator, was elected lieutenant governor at the same election, Both qualified and took their respective offices in January 1933. In May 1934, Langer was convicted in a federal court of an offense which was a felony under the federal statutes but only a misdemeanor under the laws of North Dakota. The North Dakota constitution has a provision similar to that of Minnesota heretofore quoted, to the effect that a person who has been convicted of a felony and whose civil rights have not been restored is not a qualified elector of the state, and, not being a qualified elector, that he is consequently ineligible to hold public office. The supreme court of North Dakota held that the conviction of the governor in the federal district court constituted a "disability," causing the powers and duties of the governor to devolve upon the lieutenant governor for the residue of the term of office for which the governor was elected, or until removal of the "disability." The court said (65 N.D. 91, 93, 256 N.W. 387, 388):

"It seems to us unthinkable, in view of the purpose underlying section 127, as amended, [the section of the North Dakota constitution above referred to] and the inter-relationship between the state and the United States, that an elector who has committed the most serious of offenses— for example, treason, or murder, or robbery — and who has been convicted therefor in the federal court, should not be disqualified to exercise the elective franchise in North Dakota where the offense was committed. Neither can the fact that the offense of which the respondent in the instant case was convicted may by some be considered as not a serious one make any difference in the application of the rule. The constitutional provision establishes a rule for all cases, and in its application the merits of any individual case cannot be considered. * * * every logical reason supports the disqualification. * * * [Citing cases.]

* * * * * * "The respondent further insists, that even if a conviction of felony in the federal court be within the contemplation of section 127, as amended, nevertheless such conviction must be for an offense also made felony by the statutes of the state; * * *. In disposing of this contention, we again must look to the theory and purpose underlying the constitutional provision. As we have shown, the reason for the disqualification therein provided is to protect the state by insuring that only those mentally and morally qualified shall participate in its elections. Acts constituting felony may differ in different jurisdictions. Statutes simply embody the standard established by the public conscience in those jurisdictions where they are enacted. Public sentiment may vary and standards change accordingly. But he who violates the statute must be held to know what he is doing when he does the prohibited act and to know the consequence in the way of penalty. His personal standard cannot be the measure of the character of the act or its depravity. The standard established by the lawmaking body of that jurisdiction must do that. [Citing cases.] Accordingly, he who sets himself above the law and does an act, regarded by the United States as of so serious a nature as to be prohibited and penalized as a felony, may well be held in this state to be unfit to participate in governmental affairs. * * * We therefore hold that, consistent with the theory and purpose of section 127, ...