State ex rel. Thompson v. Donahue

Sedgwick, J. These proceedings were begun in this court by the attorney general, upon the direction of the goyernor, under the. provisions of sections la, 3 b, eh. 71, Comp. St. 1911, commonly called the “Sackefct Law.” The respondent is chief of police of the city of Omaha. The action was be — 313 — gun in August, 1910. A referee was appointed to take the evidence and report his findings of fact and conclusions of law. The evidence taken before the referee is contained in nine large volumes of nearly 500 pages each. The questions presented are of more than usual importance. It being the first attempt to enforce the act under which it is brought, able counsel on both sides have given unusual attention to the case and have ably and carefully presented the numerous questions involved. The case has been greatly delayed, perhaps necessarily so under the circumstances, although ordinarily a case of this nature and importance .should be promptly heard-and determined. The counsel and the referee are to be commended for the thorough work which has been done. The referee made quite comprehensive findings of fact and conclusions of law, reporting that some of the charges against the respondent were not sustained by the evidence and that others were, and that the allegations of the information were sufficiently proved and that the prayer ought to be granted and the respondent removed from his office: 1. After the referee had filed his report, the respondent not having filed any motion for a new trial, the relator moved for judgment upon the report. It is now earnestly contended that a motion for a new trial is indispensable to entitle the respondent to any review of the proceedings by this court and that the motion for judgment ought to be sustained. This argument is derived principally from the provisions of sections 31G and 317 of the code. In Aultman, Miller & Co. v. Leahey, 24 Neb. 286, the case was tried to a jury in the district court and was brought to this ■ court upon a petition in error. The motion for a new trial in the district court was -filed on the fourth day after the verdict was rendered, and it was held that the motion was filed too late. The opinion contained what purports to be a quotation of section 316 of the code. The quotation, however, is inaccurate. Section 316 is as follows: “The application for a new trial must be made at the term the verdict, report, or decision is rendered, — 314 — and, except for the cause of newly discovered evidence material for the party applying, which he could not with reasonable diligence have discovered and produced at the trial, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented.” It does not appear from the opinion that the decision in the case was rendered by the district court more than three days before the motion for a new trial was filed, and the court manifestly construed the section to mean that the motion must be filed within three days after the verdict, whether any final decision had been rendered in the case or not. If this is a necessary construction of the statute, the construction ought not to be extended to the report of a referee. The language of the section forbids such a construction. The application for a new trial in the district court must be made at the term that the report of the referee is filed and within “three days after the verdict or decision was rendered.” There is a substantial reason for omitting the report of the referee in this clause of the statute, as it would be impracticable in many cases to comply with it, if the motion was required to be filed within three days after the report was rendered. In this case the record shows that the respondent had no notice of an unfavorable report of the referee until more than three days after the report had been filed, and if the report of a referee had been included in the three days’ limitation it would in' many cases practically prohibit a review in this court of the judgment of the lower court in cases that come here by appeal. This contention of the relator, then, is without merit. The respondent filed exceptions to the report of the referee, and this appears to be the proper procedure to present to the court in which the reference is had the matters relied upon to avoid ,the findings and conclusions of the referee. In such cases tlie motion for a new trial is addressed to the trial court and calls the attention of the trial court to the supposed errors in the proceedings and judgment. In law cases such motion is necessary in order to obtain a review in the appellate court. — 315 — 2. A motion was filed by the respondent wbicb was treated by the counsel and the court as a general demurrer to the information. This motion was overruled, and the respondent now contends 'that this ruling was wrong and that the information fails to state any cause of action against the respondent. Tn this connection it is urged that this court has no jurisdiction to enforce this statute. We are, however, satisfied that this court has jurisdiction. The constitution prescribes the original jurisdiction of this court. Section 2, art. VI of the constitution, provides that this court shall have “such appellate jurisdiction as may be provided by law.” Its duties as a court of review may be enlarged, but it has been frequently held that the legislature cannot increase its original jurisdiction. The statute under which the proceedings are brought directs that the proceedings shall •be begun in this court by the attorney general when directed by the governor. This provision would no doubt be ineffective unless the character of the proceedings was such that this court would have original jurisdiction thereof under the provisions of the constitution. The first section of the act provides that under certain' circumstances officers shall forfeit their office .and be removed therefrom. There can be no doubt of the validity of this provision, at least when applied to offices created by the legislature; and when an officer has forfeited his office and is subject to removal therefrom, there can be no doubt that quo warranto is the correct remedy, and this court is given original jurisdiction in all cases of quo warranto by the section of the constitution above cited. Whether the provision of the second section of the statute would in any way limit the jurisdiction of the district courts in such cases, it is not necessary now to determine. The next contention upon the motion was that the information does not charge any acts or omissions on the part of the respondent that would forfeit his right to the office under the provisions of the statute. The informa — 316 — tion is too long to copy in full. It alleges specific instances of wilful refusal on the part of respondent to make arrests for crimes when required by the mayor and board of fire and police commissioners to do so. Many of the allegations of the information are quite indefinite. No motion was made to require a more exact statement in any of the matters alleged. We will not discuss now this objection to the information.. It is sufficient to say that, under our view of the law, the information was not subject to a general demurrer. 3. Many reasons are urged for the conclusion that this prosecution cannot be sustained. It is said that the act was never intended to apply to officers who are appointed by local authorities and w'ho hold their offices at the will of the appointing power, if the duties of their office are neglected. It may be conceded that many substantial considerations are urged for such a construction of the statute. A discussion of other points in controversy will lead to a further consideration of this matter. The occasion for the statute is much more manifest in the case of officers who are elected or appointed for fixed terms and not subject to removal under other provisions of the statute upon similar grounds and for similar reasons as are contemplated in the statute in question, and yet the language of the first section of the act is so broad and general as to compel the construction that it must, in some instances at least, apply to inferior officers removable by the local authorities from which they receive their appointments. The section specifically names police officers and police commissioners, with the general words “or other officers,” and these officers cannot in all cases be exempt from its provisions. 4. The next contention is that the evidence does not allow that this respondent did “wilfully fail, neglect or refuse to enforce any law which it is made his duty to enforce.” Notwithstanding the large amount of evidence taken by both parties, it appeal’s that the evidence as to the principal facts upon which the determination of this — 317 — case depends is not substantially conflicting. The contention of the state is that the respondent has failed in many respects; that he has failed to enforce the liquor laws of the state and has neglected and refused to arrest and prosecute known violations of this law; that he has also failed to enforce the law against gambling; and that he has failed and refused to enforce the laws of the state and the ordinances of the city of Omaha, and the orders of the board of fire and police commissioners for the suppression of prostitution. The evidence abundantly shows that in all these respects the law has been openly, notoriously and continuously violated in the city of Omaha. According to this evidence there is and has been for more than 30 years continuously a large district embracing several blocks upon some of the principal streets in that city notoriously known as the “red-light district,” in which prostitution and the illegal sale of intoxicating liquors, and in many cases gambling and other vices, have been and are so openly and brazenly practiced that all citizens of Omaha, a.nd all citizens of the state, whose attention may have been called to the matter must be aware of existing conditions. Members of the police force have patrolled this district. At least two of these officers are continually in service there. They have seen these flagrant violations of the law from day to day for many years. They no doubt have the most direct and certain knowledge of the facts, but that knowledge extends beyond them to the police captain and to the chief of police, the board of fire and police commissioners, the city council, the state legislature, and the people of the state at large. All have sufficient knowledge to be responsible for existing conditions. The governor and the attorney general, assisted by a number of public spirited citizens, have attempted, and without doubt in good faith, to use this new statute to compel a better enforcement of the law. Are the provisions of the statute applicable to the case made against the respondent? Did he at the times and in — 318 — the manner specified “wilfully fail, neglect or refuse to enforce any law which it is made his duty to enforce”? The statute governing cities of the metropolitan class gives the mayor and city council ample power to make and enforce regulations for the “good government, general welfare, health,- safety and security of the city and the citizens thereof.” Comp. St,, ch. 12®, sec. 144, subd. 25. The board of fire and police commissioners consists of the mayor, who is ex officio chairman of the board, and four electors of the city, and the mayor and council are by the statute given authority to remove the members of the board for misconduct in office or failure to discharge their duties. Section 60. The board of fire and police commissioners have power to appoint the chief of police and other police officers, and to remove the same “whenever said board shall consider and declare such removal necessary for the proper management or discipline, or for the more effective working or service of the police department” (sec. 62); and it is made the duty of the board “to adopt such rules and regulations for the guidance of the officers and men of said department, for the appointment, promotion, removal, trial or discipline of said officers, men and matrons, as said board shall -consider proper and necessary” (sec. 63). Section 64 provides: “It shall be the duty of the mayor to enforce the laws of the state and the ordinances of the city, to order, direct and enforce, through the officers of the police department, the arrest and prosecution of persons violating such laws and ordinances, to co-operate with and assist the sheriff of the county in suppressing riots and mobs, and the arrest and prosecution of persons charged with crimes and misdemeanors.” The statute also provides that the chief of pólice shall be subject to the orders of the mayor and board of fire and police commissioners, and that “all orders of the board relating to the direction of the police force shall be given through the chief of police” (sec. 67). To our minds the most important question presented in this case is: Under the provisions of the statute, what — 319 — shall be regarded as a wilful failure to enforce the law? The next most important question, and one which it is necessary to consider, in order to determine the question already stated, is: What laws is it made the duty of the chief of police, upon his own initiative, to enforce? The decision of this court in Minkler v. State, 14 Neb. 181, is cited by the relator as determining what should be regarded as wilful refusal to enforce the law. In that case the county surveyor of Otoe county Avas removed from office “for wilful maladministration in his office.” It appears that in his capacity of county surveyor, and while acting as such, he “ 'removed, and carried away all the government landmarks and the stones set up to mark the section, half-section, and quarter-section corners’ of certain sections of land.” The court said: “The removal of established monuments and landmarks was unlaAvful and forbidden even from the time of Moses, the great lawgiver.” And it Avas shoAvn that he “knew the true character of the corner stones.” The court quotes from the case of State v. Preston, 34 Wis. 675. In that case the defendant was prosecuted for obstructing the highway. He offered to prove that the supervisor of the toAvn had determined that there was no highway at the place in question, and instructed him to place the fence Avliere he did. This the court held to be a good defense. This court distinguished that case from Minlder v. State, and, no doubt, properly so. Minlder acted upon his own authority. It is impossible to believe that he did not know the nature of government landmarks^ and did not act wilfully in removing all of them from several sections of land. In an action to remove a county treasurer for wilful’misconduct or maladministration in office, the supreme court of Iowa, in defining wilful misconduct, used this language: “What is the meaning of “wilful misconduct’ as that phrase is here employed? Manifestly it is not applicable to every case of misconduct, nor to every mistake, or every departure from the strict letter of the law defining the officer’s duties, but only to wilful wrongs or — 320 — omissions on his part. The word ‘wilful,’ like most other words in our language, is of somewhat varied signification according to its context and the nature, of the subject under discussion or treatment. Frequently it is used as nearly or quite synonymous Avith ‘voluntary’ or ‘intentional,’ and evidently this is the interpretation given it by the-trial court in the case before us. But when employed in statutes, especially in statutes of a penal character, it is held with but feAv exceptions to imply an evil or corrupt motive or intent.” State v. Meek, 148 Ia. 671. And, in an earlier case, the same court said: “Every voluntary act of a human being is intentional, but, generally speaking, a voluntary act becomes Avilful in law only when it involves some degree of conscious Avrong or evil purpose upon the part of the actor, or at least an inexcusable carelessness or recklessness on his part, whether the act be light or wrong.” State v. Willing, 129 Ia. 72. Prosecutions to remove officers are penal in their nature, and, while it is generally held not to be necessary that the charges should be proved beyond reasonable doubt, -still it is universally considered that the evidence supporting the charges must be clear and satisfactory. The respondent has been connected Avith the police force for nearly 20 years, and appears, during all that time, to to have been in good standing with his superiors. If he continues in the office he Avill soon be entitled to a substantial pension for the remainder of his life. If he is found guilty in these proceedings he Avill be deprived of pension, and his character and efficiency as an officer placed in doubt. An action of this nature is highly penal, and to justify a conviction the charges should be clearly and substantially proved. -Under such circumstances, wilful neglect to perform an official duty is considered to be something more than oversight or carelessness or a merely voluntary neglect. It must be prompted by some evil intent, or legal malice, or without sufficient ground for believing himself justified in the course pursued. State v. Preston, 34 Wis. 675, and cases cited; Felton v. United — 321 — States, 96 U. S. 699. This construction has been adopted by this court: “But where such act results from a mere error of judgment or omission of duty without the element of fraud, or where the alleged negligence is attributable to a misconception of duty rather than a wilful disregard thereof, it is not impeachable, although it may be highly prejudicial to the interests of the state.” State v. Hastings, 37 Neb. 96. We have said that the citizens of the state and the stab; itself, in its governmental capacity, are not entirely free; from responsibility for the conditions which are complained of as existing in the city of Omaha. There lias been some difference of opinion expressed by the courts as to the conditions which will justify the state in interfering with the affairs of local municipal government, but there have been no differences of opinion upon the proposition that the state has the jurisdiction and the duty to see that its laws for the government and protection of its citizens are observed and enforced in all parts of the state. If the local authorities are unwilling or unable to enforce these laws the state may intercede and directly control tli,e police power necessary to their enforcement. The enforcement of the law in cities of this class is now placed by the legislature directly under the control of the board of fire; and police commissioners, of which the mayor is the principal officer. If this board is selected by the voters of the city it will presumably, so far as it is able, compel such enforcement of the law as the majority of its constitutents desire and command. If the laws of the state are disregarded in any locality because of the perversity of public sentiment, and the state is compelled to interpose for their enforcement, and to that end selects the immediate governing power of the instrumentalities of its enforcement, they will presumably enforce the law as the enlightened intelligence of the people of the state at large demand. In 1897 a law was enacted by the legislature which provided that the board of fire and police commissioners of — 322 — cities of the metropolitan class should be appointed by the governor of the state. This statute was held by this court to be constitutional. Redell v. Moores, 63 Neb. 219. Such appointments were made accordingly. Afterwards this statute was repealed, and the selection of these officers was again confided to the voters of the muncipality. In this case the evidence shows without conflict that there Avas a difference of opinion among the members of the board of fire and police commissioners. Mr. Karbach, one of the members, insisted that the laws, the violation of which is now complained of, were not adequately enforced. The mayor and the other members of the board appear to have disagreed with him, and they, apparently Avithout his assistance, determined upon and adopted the policy of the board Avith regard to the enforcement of these laAVS. The difference of opinion in the board in regard to the suppression of these violations of the hnv was as to the degree that the violations should be tolerated. Mr. Karbach did not insist that these violations of the law could be wholly suppressed. He Avas called as a witness and testified: “I thought that a limited number of them (houses of prostitution) in the prescribed district was a necessary evil. As a member of the fire and police commission I was in favor of a limited number of houses of prostitution in the ‘red-light district.’ ” Mr. Karbach testified that he introduced a resolution before the board of fire and police commissioners, the substance of which Avas: “The chief of police ‘is hereby instructed to arrest and prosecute all parties selling liquor illegally,’ ” and that the resolution did not receive a second. He further testified: “The board, I think, practically, with the exception of Mr. Paige, agreed to allow those houses to open again on condition that they put curtains on all of the doors and windows, and stop soliciting of any kind. * * * I offered a resolution, looking tOAvard a more strict enforcement of laws and ordinances. This resolution received no second, and didn’t go into the minutes. In October I offered another resolution, instructing the chief — 323 — to stop the illegal sale of liquor. There was no second to this motion. * * * My feeling of animosity toward the chief is not as strong as it is toward the other members of the board.” They all appear to have considered that an attempt to wholly suppress or separate the social evil and the sale of liquor to be unsuccessful, they having been associated together in Omaha for more than 30 years. Two detectives were employed to investigate existing conditions as to the violation of the liquor law. They made quite an éxtensive report of existing conditions, and of the attempt that had been made to enforce the law, and the results. This report Avas submitted by the respondent to the board of fire and police commissioners and Avas discussed and acted upon by them. It appears that the entire board of fire and police commissioners considered these houses a necessary evil, and that the proper enforcement of the law did not require their suppression. Even the member who thought that the prosecutions were insufficient entertained this view. In this the board must have been supported by a majority of the voters of the city of Omaha. This policy was the foundation of all of the violations of law complained of. The evidence shows that all other violations of the laAV, such as are complained of, were practiced freely in these houses, and could not be suppressed if these houses were allowed to continue. It may be that the chief of police and every member of the police force were mistaken in supposing that they ought to be controlled -by this policy of enforcing the law, but Ave cannot believe that they were guilty of a wilful refusal to do their duty because of this mistaken notion that they should be governed by the policy of their superiors. It appears that the governor, after making some in-A-estigation,, wrote to the respondent specifying in detail instances of the violation of the law. After the respondent received this letter he prepared an answer manifestly in accordance with what he thought were his instructions from the mayor and board of fire and police commis — 324 — sioners. He then submitted the governor’s letter and his proposed reply to his superiors, the mayor and board of fire and police commissioners. He concludes his letter to the governor with the following expression: “If you have any further suggestions or recommendations, I shall be pleased to have them, and I will, as above stated, take the matter up with the mayor and board and act upon their instructions.” This is the key to the whole conduct of his office. The evidence shows that he is an intelligent and efficient officer. He knew, beyond doubt, the policy of his superiors, the mayor and the board of fire and police commissioners, and, being subject to removal by them at any moment, he seems to have believed that it was his duty to enforce the law against these houses of prostitution and unlawful sale of liquors in the manner and to the extent that they indicated. In this he seems to have succeeded as well as ought fairly to be demanded of him, and -this is what he had in mind when he testified: “My understanding was, what I meant to say, was that we were enforcing the law, and had been, and would continue to the best of our ability. I didn’t say that I was handicapped by anybody interfering with me.” When he was asked whether there was any understanding with the members of the board of fire and police commissioners that the laws were not to be enforced with reference to the unlawful sale of liquor, he answered that there was no such understanding. The board had determined upon many restrictions upon the conduct of the inmates of these houses and upon the sale of liquors. They evidently considered that enforcing the law, and to some extent it was, and the respondent to that extent enforced the law acting under the policy and instructions of his superiors. It was made the duty of the chief of police to keep the city attorney and prosecuting officers of the county informed of all matters that pertained to their several offices relating to the police interests of the city and of any breach of the law or ordinances. This appears from the — 325 — evidence to have been done, and prosecutions were commenced whenever so advised by the proper officers. Search warrants were issued and liquors .seized. Many trials were had, and, in a few, convictions were obtained, but as a rule the prosecutions appear to have been unsuccessful. The city attorney testified that during the year 1910 there were seven or eight prosecutions for running houses for the purposes of prostitution, and about 75 or 100 prosecutions for keeping disorderly houses, and said: “I construe the 8 o’clock closing law to apply to saloon-keepers only. * * * I know of no case where the chief of police or the detectives failed, refused and neglected to aid and assist me in obtaining witnesses and bringing about a successful prosecution.” The board of fire and police commissioners adopted their policy with regard to these violations of the law complained of upon full information. The members of the police force, who continually patrolled the worst portions of the city, as well as those whose duties were in other localities, reported the conditions which they found, and these reports were before the board in its official capacity, as well as before the members of the board. The respondent kept his under officers informed as to the resolutions of the board regarding the manner of enforcing the law. In some of his communications to the captains of police we find the following language: "As you will see by a resolution passed by the Honorable Board of Fire and Police Commissioners, at its meeting last night, they further request the enforcement of the' order of March 2d, in regard to closing of all cribs fronting on the streets, alleys or lanes within the ‘District.’ I wish to have you notify all the owners and occupants of said buildings where cribs have existed, and where they have made additional improvements, that they must cease operations at once, and any woman occupying a crib, or the places designated in the former resolution, will be arrested and brought into court after the notification given this day. You will also notify all landlords and women having name — 326 — plates on their doors that they must remove the same at once, and also all houses with glaring lights, showing names and numbers, must be removed, and they must confine themselves to an ordinary light, such as an incandescent electric light. In other words, all these glaring lights must be taken down, and, if they show a light at all, it must be of a small calibre. I wish to have this resolution of the board strictly enforced, beginning after the first notification for them to vacate.” The relator in his brief says: “In the nature of things, the entire surroundings of the respondent must be taken into consideration in passing on his good faith as an official. It would be unfair to separate and take a part of the duties or actions of the chief of police during the year 1910 and base a finding absolutely on one part of his administration. * * * The board of fire and police commissioners have the right and can x'emove the respondent without cause; they could remove him for a cause. * * * The house of px’ostitxxtion is the pillar on which the. whole system rests. If the police force would prosecute the keepers of the' houses, public prostitution could xxot exist.” The respondent testified: “We have done everything we could. Have never purposely or wilfully xxeglected to carry out the directions of the board or to do what I could to suppress lawlessness and crime. We have done what we coxxld to suppress lawlessness and crime of the character referred to in the complaint. I xxiean that we have carried out the orders of the board. I have been ready and willing to act upon information furnished from any source and that was sufficient, according to the requirements of the prosecuting officer, to secure complaint. We made iixvestigations find submitted what we found to the county attorney’s office and to the city prosecutor with reference to the surreptitious sale, referred to in my letter, to the extent that I had knowledge of them. We made investigations with reference* to the maintaining of houses of prostitution and the selling of liquor without license. — 327 — We have a section in the city known as the ‘red-light district.’ I presume it has existed for over 30 years in the northeast part of the town. It is a part of the Third ward. * * * In my judgment I would not have any right whatever to arrest any person without a warrant, except I found them in the commission of a crime'. * * * As I recollect it, the ordinance directing the chief of police to suppress prostitution was repealed years ago, and-it was taken away from him, giving him no jurisdiction whatever over it. I think the mayor has jurisdiction over the city to enforce the law. The chief of police acts under his direction. My construction of the law is that it is my duty to carry out the orders of the mayor. * * * All my conduct as chief of the police, with reference to the suppression of houses for selling liquor without license, was guided by the rules of the fire and police commission, laws of the city, and laws of the state. * * * I don’t believe I remember of any resolution referring to this. I think the board took any letter and the governor’s letter aaid went over thean and said it was all right, nay answer was all right, met with their approval, as I recollect it, no resolutions were passed.” Our statute provides: “Every sheriff, deputy sheriff, constable, marshal, or deputy marshal, watchanan, or police officer shall arrest aiad detain any person found violating- any law of this state, or any legal ordiaaance of any city or incorporated village, until a legal warrant can be obtained.” Criminal code, sec. 283. This section, no doubt, applies to the chief of police of Omaha. It was, then, his duty to arrest at once any one he personally found violating the law. He was under the control of the mayor and board of fire and police commissioners, as a deputy sheriff or deputy marshal is under control of his chief. If a deputy sheriff is inforanecl, and has ample reason to believe, that the law is being violated in a certain building, and informs the sheriff of that fact, and proposes to make an investigation and see personally whether the law is being violated, and is told by the — 328 — sheriff, his superior officer, not to do so, but to give no more attention to the matter, it may be insisted that the deputy should disregard instructions of his chief and should ascertain whether the law is being violated, and, if he found that it was, make arrests and take his chances of summary removal by his chief; but it must be conceded that the deputy, under such circumstances, might reasonably have doubts in regard to his duty, and that, if he complied with the known policy and authority of his chief, he could not be convicted of wilfully refusing to enforce the law if he failed to make further investigation. This seems to be very nearly the position in which the respondent was placed. He was appointed by the mayor and police board. He was removable by them at their pleasure. They had all of the information in regard to existing conditions that the respondent had. He knew what had been determined by his superiors to be a sufficient and proper enforcement of the law. He knew that if he violated their policy they might be expected to immediately remove him in favor of one who would obey instructions. He had not personally seen the violations of the law complained of. He knew of them by the reports of the police force, as his superiors, the mayor and board of fire and police commissioners, knew of them. The statute (sec. 64) makes it the duty of the mayor to “order, direct and enforce” the laws “through the officers of the police department.” It is not so clear that the mayor could not “direct” the manner and extent of the enforcement of law against these evils, which had been long tolerated by public sentiment and high officials, as to render an under, officer guilty of wilful neglect in following those directions if he acted in good faith, believing that he was doing his duty. If he in good faith believed that it was his duty to take 'such action in regard to the enforcement of the law as the mayor and board of fire and police commissioners prescribed for him he may have been mistaken, but it does not clearly appear that he acted wilfully. — 329 — The complaint against respondent, therefore, is not sustained, and is Dismissed.