Wenger v. Wenger
| Decision Date | 09 July 1937 |
| Docket Number | 31250-1. |
| Citation | 274 N.W. 517,200 Minn. 436 |
| Parties | WENGER v. WENGER. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Bert Fesler, Judge.
Action for divorce by Agnes J. Wenger against Harry S. Wenger. From an order adjudging defendant guilty of contempt and imposing sentence, defendant appeals.
Affirmed.
Syllabus by the Court .
1. The provision of Mason's Minn.St.1927, § 9311, that a judge shall file his decision within five months after a matter has been submitted to him, is directory and not mandatory.
2. Mason's Minn.St.1927, § 9794, authorizes as punishment for a constructive contempt whereby the right or remedy of a party to an action or special proceeding is defeated or prejudiced, a fine exceeding $50 or imprisonment, or both subject to the limitations of section 9802 ().
A sentence permitting defendant to purge himself of the contempt does not change it from one for punishment to one for enforcement of plaintiff's judgment.
3. The imposition of the maximum sentence authorized as punishment for contempt is in the sound discretion of the court.
Jenswold & Dahle, of Duluth, for appellant.
Whipple & Atmore, of Duluth, for respondent.
Defendant was adjudged guilty of contempt of court and sentenced to pay a fine of $250 and to be confined in the county farm for a period of six months unless he pay $5,000 due to plaintiff under the judgment of divorce rendered in this action.
1. The order finding defendant guilty of contempt and imposing the sentence was made a little over seven months after the matter was submitted to the court for decision. It is now claimed that the order is void because not made within five months after submission as required by Mason's Minn.St.1927, § 9311, which provides that: ‘ All questions of fact and law, and all motions and matters submitted to a judge for his decision, shall be disposed of and his decision filed with the clerk within five months after such submission, unless sickness or casualty shall prevent, or the time be extended by written consent of the parties.’ Sickness or casualty did not prevent the filing of the decision and the time for so doing was not extended by the parties. The matter was heard on April 1, 1936, on a motion and order to show cause issued on December 14, 1935, in which plaintiff sought an order punishing defendant for contempt for failure to make payments to plaintiff pursuant to the terms of the judgment, ordering him to pay attorneys' fees and expenses, vacating certain stipulations whereby plaintiff had agreed with defendant not to enforce certain money judgments, and directing defendant to assign to plaintiff his stock in the H. S. Wenger Fur Company, or, in lieu of such assignment, to impress his stock with a lien in favor of the plaintiff for the amounts due to her under the judgment. The matter was submitted on April 1, 1936. On April 2, the court made an order deciding the last two matters and expressly reserved the matters of contempt and attorneys' fees and expenses ‘ for further consideration and decision.’ On August 31, 1936, plaintiff procured an order to show cause why the court should not make and enter a decision of the matters so reserved by its order of April 2. The order to show cause was returnable September 9, 1936, at which time defendant appeared specially and objected to the court's making any order deciding the matters reserved for decision because more than five months had elapsed since the submission of the matters on April 1.
It is urged that the provisions of Mason's Minn.St.1927, § 9311, that a judge shall file his decision with the clerk within five months after a matter has been submitted to him, except when excused for reasons stated in the statute, are mandatory, and that the failure to act within the time stated operates to deprive the court of the power to make a decision afterward. The provisions of the statute relative to the time within which the court must act are directory and not mandatory. This is apparent from the history of the statute and from the language of the statute itself. The statute was originally section 41, c. 61, Public Statutes of Minnesota 1849-1858. It provided that the decision must be filed with the clerk within twenty days after the term at which the trial took place. The word ‘ must’ was used. In the present statute, the word ‘ shall’ is found. Section 41 was construed in the early case of Vogle v. Grace, 5 Minn. 294 (Gil. 232) in which it was held that the statute was ‘ directory only to the Judge.’ The basis of the decision is the well-established rule of statutory construction that statutory provisions defining the time and mode in which public officers shall discharge their duties, and which are obviously designed merely to secure order, uniformity, system, and dispatch in public business, are generally deemed directory. Dunnell, Minn.Dig. (2d.Ed.) § 8954, and cases cited in note 86. The statute remained in its original form, except for amendments as to the time within which the decision was to be filed, until 1901. In that year, chapter 47, Laws 1901, was adopted, which fixed the time for filing the decision as five months and added a clause that ‘ the provisions of this act shall be construed as mandatory and not directory.’ Probably this change was made to overrule the construction adopted in Vogle v. Grace, supra. The statute was carried into Revised Laws of 1905 as section 4185. In the Revised Laws the clause inserted in Laws 1901, c. 47, that the provisions thereof shall be construed as mandatory, and not as directory, was eliminated. It is the contention of appellant that no change was thereby effected, citing State ex rel. Decker v. Montague, 195 Minn. 278, 262 N.W. 684. In that case it was held that a revision of existing statutes is presumed not to change their meaning even if there be alterations in the phraseology, unless an intention to change the law clearly appears from the language of the revised statute. That case is not in point because the intention to change the meaning of the statute is clear in this case. In Re Estate of Cravens, 177 Minn. 437, 440, 225 N.W. 398, 399, it was held that Revised Laws 1905, § 3659, providing that a will shall be signed by the testator, omitting the provision from G.S.1894, § 4426, that such signature shall be ‘ at the end thereof,’ changed the existing law so that it is sufficient if the signature appear elsewhere on the instrument and not at the end thereof. We stated: ‘ In re-enacting a statute, intention to change meaning may as clearly appear from the omission of old as by adding new language.’ In this case the omission of the provisions of Laws 1901, c. 47, that its provisions shall be construed as mandatory, and not as directory, is a radical change. The inclusion of this language in Laws of 1901 was regarded as a radical change of policy with respect to the subject matter of the statute. For over forty years a statute had been in force which was directory as to the time of filing of decisions. If the statute were mandatory, the court would have lost its power to render judgment by mere delay beyond the specified time. Vogle v. Grace, supra. If such construction were adopted, the mere delay of a judge would necessitate the trouble, expense, and delay of another trial without any fault of the parties. The change made by chapter 47 of Laws of 1901 would have had this effect which the court sought to avoid by the construction placed on the statute in Vogle v. Grace. After four years the mandatory provision of the statute was omitted by the Revision of 1905. The language was then put in the same form in which it was prior to 1901 and substantially as it was at the time the case of Vogle v. Grace was decided. The statute in its present form had a settled construction for over forty years as being directory, and not mandatory, as to the time within which the court shall file its decision. This construction was acquiesced in during all this time. It will be presumed that the Legislature knew the construction, long acquiesced in, which had been placed upon the statute prior to the amendment in 1901. By the use in the revision of the language contained in the statute prior to the amendment of 1901, it must be presumed that the Legislature adopted the construction which had been placed upon such language. A re-enacted statute should receive the known, settled construction which it had received when previously in force. Sutherland on Statutory Construction, § 256; 25 R.C.L. 1075, § 297; Heald v. District of Columbia, 254 U.S. 20, 23, 41 S.Ct. 42, 43, 65 L.Ed. 106, in which Mr. Chief Justice White, speaking of the meaning to be given to a statute re-enacted by Congress, stated: ‘ * * * where provisions of a statute had previous to their re-enactment a settled significance, that meaning will continue to attach to them in the absence of plain implication to the contrary.’ Bruce v. Sierra, 175 Ala. 517, 57 So. 709, Ann.Cas.1914D, 125. In State v. Stroschein, 99 Minn. 248, 109 N.W. 235, it was held that prior statutes may be resorted to for the purpose of solving, but not to create, an ambiguity, and, if the language of the revision indicates an intention to adopt the meaning of a prior statute, the revised statute will be given that effect.
It is also a settled rule of construction that the words ‘ shall’ and ‘ must,’ while suggestive of a mandatory meaning, are not always to be construed in a statute as being mandatory. Where the act provided for is merely incidental or subsidiary to some chief purpose of the law and is not designed for the protection of third persons and the statute does not declare the consequences of a failure of compliance, the statute...
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