State ex rel. Shea v. Evenson

WiNsnow, C. J. The questions in this case may be briefly stated as follows: (1) Are the findings and order of removal evidence in this action of the facts found in the removal proceeding? (2) If not, was there other sufficient evidence of the defendant’s defalcation? (3) The defendant having made good his shortage before the election, was he ineligible under sec. 3 of art. XIII of the constitution? [626] 1. The first question must be answered in the negative. The present is substantially a civil action between two citizens to determine the title to office. It is well established that a judgment in a criminal action is not proof of anything, in a later civil action, except of the fact of conviction .and the legal consequences flowing therefrom. It cannot be given in evidence to establish the truth of the facts on which it was rendered. 1 Greenl. Ev. § 537; 2 Black, Judgm. § 529. A fortioñ must this be true of the order of removal in the present case, because it is an administrative order only and not a judgment. It is doubtless conclusive proof of the fact of the removal, but in another action between other parties it is not evidence of the facts on which the removal was based. 23 Cyc. 1220. There was therefore no proof of any defalcation in the case when the plaintiff rested. 2. The second question must be answered in the affirmative. The defendant’s own testimony showed the fact of the $600 shortage in the school money and the evidence of the auditor made the matter certain. There was, however, no evidence showing any other default or misconduct. The alleged corrupt payment of illegal town orders was unproven. 3. Sec. 3 of art. XIII of the constitution says that “Ro member of Congress, ... no person convicted of any infamous crime in any court within the United States, and no person being a defaulter to the United States or to this state, or to any county or town therein, or to any state or térritory within the United States, shall be eligible to any office of trust, profit or honor in this state.” Of course, it is true that if a public officer wilfully converts to his own use public moneys in his hands he is a defaulter, and the fact that he subsequently makes good the defalcation does not relieve him from prosecution and punishment for his offense. In this sense it is true that once a defaulter always a defaulter, but is this the sense in which the word is used in the section under consideration ? The words [627] are peculiar: “No person being a defaulter to the United States,” etc., “shall be eligible.” They indicate an apparent-attempt to reach persons who at the time of the election are in a state of default to either of the public governmental agencies named, including noncriminal as well as criminal defaulters. Ordinarily speaking, an officer who, though once short in his accounts, has made the shortage good, is not thereafter considered as “being a defaulter to” any branch of the government. Again, the section contains a special clause making ineligible any person “convicted of any infamous crime.” Taking the whole section into consideration, the. court is of opinion that the words “being a defaulter” in the section were intended to refer to persons presently in default, i. e. owing money received officially which they ought to but refuse to pay to some one of the governmental agencies naméd. It results from these views that the judgment must be affirmed. By the Court. — It is so ordered.