Rudolph v. United States ex rel. Rock

VAN ORSDEL, Associate Justice. This appeal is from an order of the Supreme Court of the District of Columbia, directing a writ of mandamus against the commissioners of the District, commanding them to reinstate appellee, plaintiff below, Wilbur H. Rock, on the pension roll of the metropolitan police force of the District of Columbia, and to.reinstate his name on the pension roll as of the date when his pension was discontinued. It appears that plaintiff was retired from the police force on May 31, 1919, and under the provisions of- the Act of Congress of September 1, 1916 (39 Stat. L. 718, § 12), he received a pension, as such retired member of the police force, up until- March 11, 1924, when the commissioners ordered his pension discontinued, for the reason that plaintiff had been found guilty of a violation of the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 10138% et seq.). The discontinuance was based upon a provision of the act of 1916 as follows: “The commissioners of the District of Columbia may, in their discretion, reduce or discontinue the relief granted to any person under the provisions of this act, upon receipt of duly certified information from a court of competent jurisdiction that any person receiving such relief has been convicted in such court of any crime involving moral turpitude.” The record discloses that, before the commissioners discontinued plaintiff’s pension, they were in receipt of a certified transcript of the record of proceedings in the District Court of the United States for the District of Maryland, No. 5668, Criminal Docket, in the ease of United States v. Wilbur H. Rock. From the transcript it appeared that plaintiff had pleaded guilty to a criminal information for the violation of section 3, title 2, of the Act of Congress of October 28, 1919, known as the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 10138%aa). The information charged him with the unlawful possession and transportation of intoxicating liquors. He was fined by the court $200 and costs, and his automobile was forfeited. In the court below the case turned entirely on the question of whether or not a first offense violation of the National Prohibition Law, of unlawfully having in possession and transporting intoxicating liquors, is. a crime involving moral turpitude. If it is, the power to discontinue plaintiff’s pension is committed to the discretion of the commissioners of the District, under the act of 1916, and that discretion could not be controlled by a writ of mandamus. We are not much concerned with the distinction sought to be made between crimes malum in se and those which are merely malum prohibitum. Many things which were not considered criminal in the past have, with the advancement of civilization, been declared such by statute; and the commission of the offense, if it involves the violation of a rule of public policy and morals, is such an act as may involve moral turpitude. It has been held, for example, that assault and battery, breaches of the peace, forcible en [488] try and detainer, trespassing, and sale of intoxicating liquor without a license, are not such offenses as involve moral turpitude. But selling liquor without license, under the former method in which the liquor traffic was regulated, is a very different offense from a violation of the National Prohibition Act. Under former state statutes the sale or traffic in liquor was not regarded as immoral. The object of licensing it was twofold: First, for the raising of revenue; and, second, for confining a lawful business within responsible limitations. The prohibition movement, however, was grounded upon a different principle. It rests upon the theory that the use of intoxicating liquors as a beverage is detrimental to the public welfare and the public morals, and this advance step led to the adoption of the Eighteenth Amendment to the Constitution of the United States and the National Prohibition Act, for'its enforcement. The mere violation of a liquor license regulating, by ordinance or statute, a subject not regarded in itself as immoral, might well be regarded as possessing none of the elements involved in moral turpitude. For example, it would hardly be contended that there is anything inherently evil or immoral in driving an automobile on the street, yet one may be guilty of a crime for driving an automobile without a license. But this, like the selling of liquor without a license, might not be such an offense as to involve moral turpitude in its commission, yet either offense may be committed under circumstances which would impute to the offender moral turpitude. On the other hand, the criminal character of the traffic in intoxicating liquors is very different, under the present law, from that which existed under the license system formerly enforced in the states of the Union. The traffic in intoxicating liquors has, by fundamental law, been denounced as inherently wrong, a social evil, condemned by every standard of private and public morals. There is no hard and fast rule as to what constitutes moral turpitude. It cannot be measured by the nature or character of the offense, unless, of course, it be an offense, inherently criminal; the very commission of which implies a base and depraved nature. The circumstances attendant' upon the commission of the offense usually furnish the best guide. For example, an assault and battery may involve moral turpitude on the part of the assailant in one ease and not in another. Intent, malice, knowledge of the gravity of the offense, and the provocation, are all elements to be ednsidered. It may well be that an unsophisticated person could be caught in the act of transporting liquor, in violation of law, under circumstances which would not justify the court in holding that the act involved moral turpitude; but this rule can hardly be applied to a police officer of many years’ experience, sworn to defend and uphold the law. In the ease of Pullman Palace Car Co. v. Central Transportation Co. (C. C.) 65 F. 158, the court, holding that a contract made between the parties in reliance upon a statute believed by both parties to confer authority to make it, and without any intention to injure the public, involved no moral turpitude, said: “A contract to promote public wrong, short of crime, may or may not involve it. If parties intend such wrong, as where they conspire against the public interests, by agreeing to violate the law or some rule of public policy, the act doubtless involves moral turpitude. When no wrong is contemplated, but .is unintentionally committed, through error of judgment, it is otherwise. Turpitude is defined by Webster to be ‘inherent baseness or vileness of principle, or acting, shameful wickedness.’ No unintentional wrong, or improper act innocent in purpose, can involve it. When individuals or corporations enter into contract in excess of authority or violate some rule of law unintentionally, the act does not involve moral wrong, much less turpitude. The subject has been much before the courts, and while loose and misleading expressions appear occasionally, the decisions are all reconcilable with this statement.” This, we think, is a wholesome rule. It declares that a court may be justified in holding that an' illegal civil contract may be made under circumstances which would involve moral turpitude on the part of one or both of the parties;.the test being: Is the act an intentional conspiracy against the. public interest and in violation of a rule of public policy? The present ease, .however, rests upon a much stronger foundation than that of a civil contract, since the law violated is a' law affecting public morals. It is a violation of the social duty which the plaintiff owed, not only to his fellowmen, but to society in general, and where the criminal act involves such an intentional violation of private and social obligation, we think it involves moral turpitude. At the time plaintiff was convicted of a violation of the Prohibition Law, he was still a member of the police force of the District of Columbia, upon the pay roll of the government, subject, under certain conditions, [489] to be called into service. The act of 1916 provides that “any retired member of the police department or Are department of the District of Columbia receiving relief under the provisions of this act may in time of flood, riot, conflagration, during extraordinary assemblages, or unusual emergencies, be called by the commissioners of said District into the service of the department from which he was retired with relief for such duty as his disability will permit of him performing, without compensation therefor; and the said commissioners shall have power to enforce compliance with the provisions hereof by withholding the payment of relief.” When plaintiff entered the public service as a policeman, he took a solemn oath to support and defend the Constitution of the United States, and to bear true faith and allegiance to the same. It can hardly be said that a police officer, charged with the maintenance of the public peace, can be either defending the Constitution, or bearing true faith and allegiance thereto, when he is engaged in an open violation of the law. As was said by the court in Young v. Edmunson, 103 Or. 243, 204 P. 619, a disbarment proceeding: “To support is to uphold; to maintain. No bootlegger is a supporter of the Constitution and laws of the United States and of the state of Oregon. An attorney at law takes an oath to support the Constitution and laws of the United States and of this state, and it is made his special duty so to do. He cannot consistently be both attorney at law and bootlegger at one and the same time.” The fact that this was plaintiff’s first offense is not controlling. The man who traffieks in intoxicating liquors in violation of the Constitution and laws of the United States, whether it be the first or the tenth offense, is an offender against the public peace, dignity, and morality of the United States, and a conviction in a court of competent jurisdiction implies criminal intent. The commissioners of the District, vested by law with discretion to continue or discontinue plaintiff’s pension, have resolved the ease against him; and, in the absence of an abuse of that discretion, the court, in this proceeding for a writ of mandamus, is without authority to review the case, as in error, and interfere with'the exercise of that discretion. The judgment is reversed, with costs, and the cause is remanded, with directions to dismiss plaintiff’s petition. Petition for writ of error to remove cause to the Supreme Court of the United States denied April 18, 1925.