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noting that the state constitution’s definition of a felony as "an ‘offense punishable by death or imprisonment in the penitentiary,’ " did not mean "a penitentiary or any penitentiary; it means the penitentiary of this state."
Summary of this case from People v. IannicelliOpinion
No. 18,183.
Decided April 22, 1957.
Original proceeding in the nature of quo warranto challenging the qualifications of a county sheriff convicted of a felony in the Federal Courts to hold office. Rule to show cause issued.
Rule Discharged.
1. QUO WARRANTO — Supreme Court — Original Jurisdiction — Discretion. Where quo warranto involves questions deemed publici juris, the Supreme Court may, in the exercise of its discretion, exercise original jurisdiction.
2. OFFICERS — Disqualification — Conviction of Felony — Statutes — Construction. Under C.R.S. '53, 35-1-5, a county office becomes vacant by operation of law when the incumbent is convicted of an infamous crime, or of any offense involving violation of his official oath.
3. Conviction of Felony — Foreign Jurisdiction — Statute — Construction. In the absence of an express statute giving effect to a conviction and sentence in another jurisdiction, the provisions of C.R.S. '53, 35-1-5, do not effect a disability or disqualification of an officer convicted of a felony in such other jurisdiction.
4. STATUTES — Construction — Officers — Conviction of Felony — Foreign Jurisdiction. Where the Legislature has provided in certain other statutes that conviction of crimes in other jurisdictions would operate disadvantageously to the offender in this state, failure to so provide in C.R.S. '53, 35-1-5, evinces a purpose to omit words that would give effect to such conviction as resulting in vacation of an office by operation of law.
5. CRIMINAL LAW — Statutes — Definitions — Infamous Crimes. In Colorado, while all infamous crimes are felonies, all felonies are not infamous crimes, the provisions of C.R.S. '53, 39-10-18 and 40-2-31, being definitive of such crimes.
6. Constitution — Felony — Definition. Under Art. XVIII, Sec. 4 of the Colorado Constitution defining a felony as any offense punishable "by death or imprisonment in the penitentiary," means the penitentiary of this state.
7. WORDS AND PHRASES — Words of Limitation — "The." The word "the" is a word of limitation and is used before nouns with a specifying or particularizing effect, opposed to the indefinite or generalizing force of "a" or "an."
8. Felony — Conviction — Foreign Jurisdiction. Conviction of a felony, whether infamous or otherwise, has a restricted scope and relates only to such convictions under the laws of this state, except where broadened by statutory language to include conviction in other jurisdictions.
9. OFFICERS — Disqualification — Conviction of Felony — Foreign Jurisdiction. A county sheriff convicted of income tax evasion in the Federal courts, was not convicted of an offense within the terms of C.R.S. '53, 35-1-5, so as to effect an automatic vacancy of his office.
Original Proceeding.
Mr. BERNARD P. O'KANE, Mr. CARL CLINE, for the People of the State of Colorado.
Messrs. HORNBEIN HORNBEIN, Mr. ROY O. GOLDEN, for intervenor.
Messrs. ROBINSON CURRAN, for defendant Carl E. Enlow.
Mr. THOMAS J. CARNEY, Mr. IRA C. ROTHGERBER, JR., for defendant Arthur Wermuth.
ON January 11, 1957, the District Attorney for the First Judicial District filed an original proceeding in this court in the nature of quo warranto under Rules 106 and 116 R.C.P. Colo. Named as the defendant was Carl E. Enlow, the person who was then in possession and control of the office of Sheriff of Jefferson County, Colorado. It was alleged in the complaint that a vacancy occurred in the office when Enlow was convicted of an infamous crime involving a violation of his official oath, and that such conviction automatically worked a divesture of the authority and accoutrements of the office, notwithstanding which Enlow purported to act as Sheriff for the County.
Because the question thus presented was deemed publici juris, this court agreed to act, and in that behalf issued a rule to show cause to Enlow. The impact of the various functions and activities of the office on the public, all in the exercise of the prerogatives thereof and in the enforcement of the civil and criminal process of the courts, prompted us to accept the responsibility of original jurisdiction. Art. VI, Sec. 3, Constitution of Colorado; State v. Sullivan, 49 Ariz. 51, 64 P.2d 809. To refuse to hear and determine the matter at the earliest convenient date seemed against the best interests of the public, particularly since the longer Enlow held and exercised the prerogatives of the office, if the exercise thereof proved unwarranted, the more problems would multiply which might subsequently vex the courts.
Enlow had been elected in November 1954 to the office of Sheriff of Jefferson County, and qualified and assumed his duties in January 1955. In March 1956 Enlow was indicated by the federal grand jury. He was charged in two counts with federal income tax evasion for the years 1949 and 1950 in violation of Section 145 (b) of the Internal Revenue Code [ 26 U.S.C. Section 145 (b)]. In each count it was alleged that Enlow made false and fraudulent tax returns in that he failed to report his full income for each of these years. Enlow was thus charged with violation of a federal law in the United States District Court for Colorado.
To the indictment Enlow pled not guilty; trial was had before a jury on the issues thus joined; and on June 27, 1956, he was found guilty on the first count and not guilty on the second. A sentence that he be imprisoned for three years and fined $500.00 was immediately imposed. From this sentence Enlow appealed to the United States Court of Appeals for the 10th Circuit. On January 2, 1957, said appellate court affirmed the judgment and sentence of the federal district court.
While these court proceedings were running their course, certain events were transpiring in the county affecting the office of Sheriff. Just prior to the imposition of the sentence upon Enlow, the Board of County Commissioners of Jefferson County considered a resolution demanding that Enlow tender his resignation. This resolution was defeated by a vote of two to one. On January 7, 1957, and before the decision of the Court of Appeals became final, the Board of County Commissioners as then constituted held its last meeting, and adopted a resolution appointing W. Grant Chester, the Intervener herein, to the office of Sheriff for Jefferson County. Two voted for the resolution, and the third abstained from voting. Enlow refused to surrender the office to Chester.
In the afternoon of January 11, 1957, and still at a time before the decision of the Court of Appeals became final, Enlow tendered his resignation to the Board of County Commissioners as newly constituted following the November 1956 election. Enlow's resignation was accepted immediately, and the Board thereupon appointed Arthur Wermuth, later made a party defendant herein, to succeed Enlow, and Wermuth has been in possession and control of the office, and functioning as Sheriff of the County since this appointment.
Despite the changing circumstances, the controversy continues; Enlow's resignation and the resultant action of the Board metamorphosed the original dispute in this court from charged usurpation of office by Enlow to a contest between Wermuth and Chester over who is rightfully and appropriately appointed to succeed Enlow. Notwithstanding the change in the cast of characters and the factual situation, the public nature of the problem remains and we proceed to its resolution.
C.R.S. '53, 35-1-5, ordains that in any of seven situations a county office becomes vacant. We are concerned with only two (the second and fifth), but illumination is shed on the construction to be given the pertinent parts by a consideration of the whole. The section provides that "Every county office shall become vacant, on the happening of either of the following events, before the expiration of the term of office: (1) The death of the incumbent. (2) His resignation. (3) His removal. (4) His ceasing to be an inhabitant of the county for which he was elected or appointed. (5) His conviction of any infamous crime, or any offense involving a violation of his official oath. (6) His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath and bond within the time prescribed by law. (7) The decision of a competent tribunal, declaring void his election or appointment."
In our view of the statute, a county office becomes vacant by operation of law when the incumbent is convicted of an infamous crime, or when he is convicted of any offense — whether felony or misdemeanor —, if it involves a violation of his official oath. People ex rel. v. Laska, 101 Colo. 221, 72 P.2d 693. Stated otherwise, a conviction of either offense automatically causes a vacancy in the office. In re Obergfell, 239 N.Y. 48, 145 N.E. 323; State v. Sullivan, 66 Ariz. 348, 188 P.2d 592; State v. Jurgensen, 135 Neb. 136, 280 N.W. 886.
Any other construction would do violence to plain, unequivocal language. Indeed, so simple, direct and integrated is the language of C.R.S '53, 35-1-5, that there is no room for interpretation as to when a vacancy occurs. The happening of the event fixes the time and fulfillment of the vacancy. The mingling of situations which ordinarily would give rise to vacancies ipso facto with others that do not necessarily create vacancies ipso facto, without difference of treatment in the statute, is significant. Thus, among the listed events creating a vacancy in office are three which by their very nature result in termination of office-holding, and the statutory declaration that the office becomes vacant upon the happening thereof seems almost surplusage. Reference is made to the provisions relating to the death of an incumbent, or his resignation, or his removal; the occurrence of any of these events establishes instanter a vacancy. To hold that the death of an incumbent, or his resignation, or his removal effects an immediate vacancy in the office but that the same is not true as to an officer convicted of either of the described offenses would result in a strained, unnatural and illogical construction, in view of the language employed in the statute which makes no such distinction.
Section 145 (b) of the federal Internal Revenue Act provides that:
"Any person required under this title to collect, account for, and pay over any tax imposed by this title, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution."
If Enlow was convicted of violating this section, and if such amounts to conviction of an infamous crime or an offense involving a violation of his official oath, within the purview of C.R.S. '53, 35-1-5, the office of Sheriff of Jefferson County became vacant by operation of law on the date of such conviction.
Was Enlow convicted of violating said Revenue Act prior to January 11, 1957, the date of his resignation, and if he was, was he convicted of an infamous crime or of an offense involving a violation of his official oath? These are the important questions which must be answered. If either question is answered in the negative, Wermuth is the properly appointed Sheriff. If both questions are answered in the affirmative, Chester is the properly appointed Sheriff. Important to a consideration of the question of conviction vel non is the fact that Enlow in his answer here denies guilt of the matter charged against him in the federal court.
What meaning should be attached to the term "conviction" as used in C.R.S. '53, 35-1-5 (5)? To define the word is no easy task. Its meaning in other situations has run the gamut of proceedings from a plea of guilty or the verdict of a jury, People v. Brown, 87 Colo. 261, 286 Pac. 859, to the last expression of this court, Read v. Read, 119 Colo. 278, 202 P.2d 953. For the variety of definitions given the word, see 13 C.J. 903 to 910, 18 C.J.S. 97 to 99.
Chester contends that the verdict of the jury constitutes the "conviction" of Enlow, and relies upon Commonwealth v. Lockwood, 109 Mass. 323, 12 Am. Rep. 699; Quintard v. Knoedler, 53 Conn. 485, 55 Am. Rep. 149, and Attorney General ex rel O'Hara v. Montgomery, 275 Mich. 504, 267 N.W. 550, as supporting his position. Wermuth maintains that "'Conviction,' in its legal sense, means a final judgment conclusively establishing guilt," 13 C.J. 907, § 4, and that the presumptive guilt arising from the verdict of guilty and the judgment and sentence thereon, where the matter pends before an appellate court, is insufficient, relying on language used in People ex rel. Dunbar v. Moore, 125 Colo. 571, 245 P.2d 467.
This court has considered the word under varying circumstances, and has adopted a different definition in each case. People v. Brown, supra, involved the construction of a statute which commenced: "If any person convicted of any criminal offense before any justice of the peace shall wish to appeal to the county court, he or she shall," etc. The court turned "for aid to the more promising rule of reason. To the layman of average education and intelligence the statement that one has been 'convicted' of a crime conveys the impression that he who maintained his innocence has been legally declared guilty. Let the average lawyer be told that an acquaintance has been sentenced for a crime and his natural inquiry would be, 'Did he plead guilty or was he convicted?' Before sentence can be pronounced in a criminal case the record must show guilt. This may appear by plea admitted on order, or by conviction. In this sense the word conveys the idea of the judicial determination of a contested fact as distinguished from the judicial entry of an admitted fact. In such sense, we are confident, the lawmakers used it in the section before us." (Emphasis supplied.)
In Read v. Read, supra, the husband sought review in this court of an order requiring him "to pay certain expenses incident to the proceeding and other allowances and expenses in connection with a criminal action" against his wife. It was held that the husband "became obligated to support plaintiff, and nothing short of legal wrongful conduct on her part can free him from that obligation. Here there is no wrongful conduct on plaintiff's part yet established, for notwithstanding the fact that she has twice been convicted of murder of the second degree, nevertheless, if upon review in this court the judgment of conviction is reversed, she has not been convicted of a felony for which defendant could maintain an action in divorce." (Emphasis supplied.)
Where a member of the Colorado bar was indicted for and convicted of the crime of conspiracy to violate the Lindberg Act relative to kidnaping in the federal district court for Western Oklahoma, and was thereafter "sentenced to confinement in a United States penitentiary for a term of ten years," does such conviction work an immediate disbarment in the state even though he denies guilt in the disbarment proceedings? This court made answer to the question in People ex rel. v. Laska, supra, in these words:
"Neither petitioner nor respondent, as our study convinces, has fully apprehended the doctrine of our decisions in disciplinary proceedings based on conviction of felony in courts other than of Colorado jurisdiction. When a member of the bar is convicted of a felony, a Colorado legislative enactment operates to disqualify him from 'practicing as an attorney in any of the courts of this state.' '35 C.S.A., c. 48, § 533 (C.L., § 7144). Clearly, if in such an instance there has been conviction in a Colorado court, the status of the convicted attorney is fixed by law, and upon formal exhibition of the record we are bound to note the fact and order accordingly, if, indeed, an order is necessary. But where the conviction has been in a court of another jurisdiction, as here, and the attorney whose discipline is sought formally invokes that right, we have deemed it consonant with justice to accord him the privilege of denying his guilt notwithstanding his conviction in a 'foreign' court, and to plead facts and circumstances reasonably indicating that he did not have a fair trial, or which import innocence rather than guilt, and have inquiry made under our supervision. People ex rel. v. Brayton, 100 Colo. 92, 65 P.2d 1438; People ex rel. v. Burton, 39 Colo. 164, 88 Pac. 1063, 121 Am.St.Rep. 165. Otherwise, as we perceive, the judgment of the convicting jurisdiction would operate extraterritorially, and automatically, as if by lawful mandate, require the ministers of justice of another sovereign jurisdiction to visit an added penalty on him, who prone and helpless before them, denies his guilt and pleads that which indicates his innocence of the charge in the court of his trial. In an analogous situation, the New York court has said: 'The disqualification created by this statute is consequent only upon a conviction in this state.' Sims v. Sims, 75 N.Y. 466. * * * Considering that the judgment here must be ours, we think to find the facts upon which to base it, if properly moved thereunto, also is our responsibility. The sum of our holding heretofore which we now emphasize, is that where the conviction has not been in our courts, the statute, cited supra (quoted in the Brayton case), and on which the attorney general relies, does not foreclose a respondent as to the fact of guilt, or conclude us in measure of discipline." (Emphasis supplied.)
Conviction under the statute of an infamous crime, or of an offense involving the violation of the oath of office operates as a disqualification so as to create a vacancy forthwith in the office. Since the statute, providing for vacancies in county offices in certain contingencies, is a disqualifying statute, it is our opinion that People ex rel. v. Laska, supra, involving a statute disqualifying lawyers from the practice of law in this state upon being convicted of a felony, is authority on the question of whether Enlow was convicted under such circumstances as to effect an immediate vacancy in his office. In so holding, we apply the doctrine that in the absence of an express statute giving effect, within the state which enacts it, to a conviction and sentence in another jurisdiction, such conviction and sentence can have no effect, by way of penalty, or personal disability or disqualification, beyond the jurisdiction of the court rendering such judgment. Logan v. U.S., 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. In applying this doctrine courts have held that federal and state jurisdictions are foreign to each other. People ex rel. v. Laska, supra; People ex rel. v. Brayton, 100 Colo. 92, 65 P.2d 1438; People v. Gutterson, 244 N.Y. 243, 155 N.E. 113; Brown v. U.S. 233 Fed 353, L.R.A. 1917A 1133; Hildreth v. Heath, 1, Ill. App. 82. Where an attorney was convicted in the District Court of the United States for Colorado of violating a federal statute, such conviction would be considered by the Colorado court in disbarment proceedings in an evidentiary capacity only, and would not work extraterritorially to effect a disbarment. People ex rel. v. Brayton, supra. From these authorities it appears that a conviction in the federal court for this state is not conclusive on a question of disqualification to hold an office of honor, trust or profit under the laws of Colorado, or to practice as an attorney in any of the courts of this state, in the absence of express statutory language providing for such disqualification.
The refusal to give extraterritorial effect to convictions unless statutory provision is made therefor is settled law. People ex rel. v. Laska, supra; Sims v. Sims, 75 N.Y. 466, and Commonwealth v. Green, 17 Mass. 515 (both cited in the Laska case); State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508, 86 A.L.R. 290; In re Ebbs, 150 N.C. 44, 63 S.E. 190, 19 L.R.A.N.S. 892, 17 Ann. Cas. 592. That the legislature of this state is thoroughly cognizant of the rule is apparent from its enactments in other circumstances providing for the extraterritorial effect of convictions in other jurisdictions. Thus, C.R.S. '53, 39-13-1 provides that "Every person convicted in this state of any felony who shall have been previously twice convicted upon charges separately brought and tried, either in this state or elsewhere, of a felony or of an assault to commit a felony, or of a conspiracy to commit a felony, or, under the laws of any other state, government or country, of a crime which, if committed within this state, would be such a felony, shall be adjudged an habitual criminal . . ." C.R.S. '53, 46-1-1, in part reads: "An marriage may be dissolved and a divorce granted for any one or more of the following named reasons, and no other cause: * * * (8) That the spouse from whom a divorce is sought has been convicted of a felony in a court of a record in any state since the marriage." C.R.S. '53, 75-2-12 contains in part the following: "No license provided by this Article shall be issued to or held by: * * * (3) Any person who has been convicted of a felony or of any violation of any liquor law in any federal or state courts of record in the State of Colorado or any other state or territory . . ."
We attach significance to the failure of the legislature to provide in C.R.S. '53, 35-1-5, for effect to be given to convictions in other jurisdictions. The fact that the legislature has provided in certain statutes that convictions in other jurisdictions shall operate disadvantageously in this state to the convicted person, and did not so provide in C.R.S. '53, 35-1-5, requires us to hold that, as to the latter, the legislature purposely omitted words which would have given effect to foreign convictions. To ascertain the intent of the legislature in enacting a particular statute, resort may be had to a comparison in language of the statute under study with analagous but unrelated legislation, noting the inclusion of certain persons, things, situations, or relationships in the latter not found in the former, and deducing therefrom the intentional exclusion of such persons, things, situations, or relationships from the former. U.S. v. Columbian, Etc. Bridge Co., 99 F.2d 287; State v. McCord, 203 Ala. 347, 83 So. 71.
Is the violation of Section 145 (b) of the Internal Revenue Act the commission of an infamous crime within the meaning of C.R.S. '53, 35-1-5? The answer to this question involves a consideration of certain constitutional and statutory provisions, and of cases construing them. It is our view that the constitutional and statutory provisions hereinafter quoted are in pari materia with C.R.S. '53, 35-1-5, and that all these laws must be construed together, in order to arrive at a proper interpretation.
C.R.S. '53, 39-10-17, provides that "Subject to the constitution of the state, every person convicted of felony shall from thenceforth be disqualified from holding any office of honor, trust, or profit under the laws of this state, or practicing as an attorney in any of the courts of this state." (Emphasis supplied.) By the following section (39-10-18) it is provided that "Subject to the provisions of the state constitution, each and every person who may be convicted of the crime of rape, kidnaping, willful and corrupt perjury or subordination (sic) of perjury, arson, burglary, robbery, sodomy or the crime against nature, incest, larceny, forgery, counterfeiting or bigamy shall be deemed infamous, and shall be therefor incapable of holding any office of honor, trust or profit, or voting at any election, of (sic) serving as a juror." (Emphasis supplied.) It is provided by C.R.S. '53, 40-2-31, that "The infamous crime against nature, or the attempt to commit said crime, either with man or beast, or any unnatural carnal copulation committed, or the attempt to commit any unnatural carnal copulation per anus or per os or in any other way whatsoever shall subject the offender to be imprisoned in the penitentiary for a term of not less than one year and not more than fourteen years. * * *" (Emphasis supplied.) Article XVIII, Section 4, of our constitution directs that "The term felony, wherever it may occur in this constitution, or the laws of the state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other." (Emphasis supplied).
It is the position of Chester that an infamous crime is one punishable by imprisonment in any penitentiary, and he cites in support of his contention Ex Parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. U.S., 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909; In re Claasen, 140 U.S. 200, 11 S.Ct, 735, 35 L.Ed. 409; Becker v. Green County, 176 Wis. 120, 184 N.W. 715; Crampton v. O'Mara, 193, Ind. 551, 139 N.E. 360; Attorney General ex rel. O'Hara v. Montgomery, 275 Mich. 504, 267 N.W. 550.
We are inclined to hold that C.R.S. '53, 39-10-18 and 40-2-31, supra, are definitive and that infamous crimes are those set forth in these sections. In speaking of these sections, this court has said that they present "the list of infamous crimes as defined by statute." In re Lowrie, 8 Colo. 499, 9 Pac. 489; Koontz v. People, 82 Colo. 589, 263 Pac. 19. In re Lowrie, supra, is authority, in our opinion, for the proposition that in this state all infamous crimes are felonies, but not all felonies are infamous crimes. How else may we view this language, "The offense for which he was convicted [grand larceny] came also within the list of infamous crimes as defined by statute," when the court had just completed saying, "The petitioner was, therefore, convicted of a felony, as the term is defined by section 4, article 18, of the constitution, which is: 'The term "felony," wherever it may occur in this constitution, or by the laws of this state, shall be construed to mean any criminal offense punishable by death or imprisonment in the penitentiary, and none other'"?
But, if all felonies are to be considered as infamous crimes, Chester is confronted with another impasse. The term "felony," unadorned by words of enlargement or amplification, when used in the statutes of this state has a well-defined meaning, as is disclosed by Article XVIII, Section 4, of the Constitution. Brooks v. People, 14 Colo. 413, 24 Pac. 553; In re Pratt, 19 Colo. 138, 34 Pac. 680; Ritchey v. People, 23 Colo. 314, 47 Pac. 272; Williams v. People, 26 Colo. 272, 57 Pac. 701; People v. Godding, 55 Colo. 579, 136 Pac. 1011; Martin v. People, 69 Colo. 60, 168 Pac. 1171; Eckhardt v. People, 126 Colo. 18, 247 P.2d 673; Smalley v. People (Colo. 1956), 134 Colo. 360, 304 P.2d 902. It must be remembered that "under our constitution the test by which to determine whether an offense less than capital shall be deemed a felony or a misdemeanor is made to depend upon whether the same is punishable by imprisonment in the penitentiary or in the county jail." Brooks v. People, supra.
[6-7] A felony involves an "offense punishable by death or imprisonment in the penitentiary, and none other." "The penitentiary" does not mean a penitentiary or any penitentiary; it means the penitentiary of this state. Whether infamous or not, an offense is a felony if punishable by death or imprisonment in the state penitentiary. The word "the" is a word of limitation — a "word used before nouns, with a specifying or particularizing effect, opposed to the indefinite or generalizing force of 'a' or 'an.'" U.S. v. Hudson, 65 Fed. 68. In construing as a ground for divorce, "Being sentenced to the penitentiary, and not pardoned before being sent there," the Supreme Court of Mississippi said in Daughdrill v. Daughdrill, 180 Miss. 589, 178 So. 106: "It will be noted that the language of the statute is 'being sentenced to the penitentiary.' In 19 C.J., p. 43 § 78, it is stated that, 'unless otherwise expressed in the statute, conviction and imprisonment without the state is not a cause for divorce.' To like effect is 9 R.C.L., p. 320 § 96. Also see Amis no Divorce and Separation, § 140. That writer says, referring to this language: 'Clearly that does not mean a penitentiary, or any penitentiary, but only the penitentiary of this state.'" (We adopt the emphasis of the court, used in this case.)
Conviction of a felony, whether it be infamous or otherwise, has a restricted scope, except where broadened by statutory language to include conviction in other jurisdictions (as witness our divorce and habitual criminal statutes, supra.) "The term felony, wherever it may occur in this constitution, or the laws of this state, shall be construed to mean any offense, and no other, the penalty for which shall be death or imprisonment in the state penitentiary." (Emphasis supplied.) People v. Godding, supra. "If the penalty is imprisonment in the state penitentiary, it is considered a felony, and if by fine or imprisonment in the county jail, a misdemeanor." (Emphasis supplied.) Eckhardt v. People, supra.
C.R.S. '53, 35-1-5, does not explicitly or implicitly reach a conviction in another jurisdiction. The only county officer whose office becomes automatically vacant by its terms is he who commits and is convicted of a felony (using infamous crime in its broadest sense) punishable by death or imprisonment in the state penitentiary. But Enlow was not convicted of such felony; he was convicted of a felony punishable in a federal prison. It follows, therefore, that there was no vacancy in the office of Sheriff until Enlow resigned.
The meaning given to the words "the penitentiary" by our court is consonant with decisions from other jurisdictions. It was said of a statutory provision similar to our constitutional provision, "I think it quite clear that the disqualification created by this statute is consequent only upon a conviction in this state." Sims v. Sims, supra, cited with approval in the Laska case, supra. In a disbarment proceeding the Supreme Court of North Carolina was called upon to determine whether a conviction in a federal court in Louisiana of forging certain receipts worked a forfeiture of the privilege to practice law where the statute provided "That an attorney at law must be disbarred and removed for the following causes: (a) Upon his being convicted of a crime punishable by imprisonment the penitentiary. . ." The majority and dissenting opinions reveal that dissension arose over the construction to be given to the words, "imprisonment in the penitentiary." The majority held that a conviction in another jurisdiction was not within the terms of the statute. In re Ebbs, supra. It was held in State v. Burnett, 184 N.C. 783, 115 S.E. 57, in a case involving a liquor violation, as follows: "The Polk County Act provides that upon conviction for manufacturing liquor, the convicted person may be imprisoned in the penitentiary. The act, of course, uses the term 'penitentiary in accordance with its ordinary signification, which is 'state prison.'" See also State v. Delmonto, 110 Conn. 298, 147 Atl. 825; Queenan v. Territory, 11 Okla. 261, 71 Pac. 218, 61 L.R.A. 324.
Enlow was convicted of a violation of the federal Internal Revenue Code. Chester would have this court consider the evidence before the federal trial court as establishing disqualification. It is said that this evidence will reveal that Enlow accepted pay-offs for illegal operation of slot machines and other gambling devices in Jefferson County, and failed to report said pay-offs in his income tax returns; that his failure to make such reports resulted in the conviction. By the language of the statute a vacancy is created when a conviction is had of a county officer of an offense involving his official oath. Enlow was not convicted of accepting pay-offs; he was convicted of an income tax evasion. Such an offense does not involve the violation of his official oath, for his oath is as follows:
"I, Carl Enlow, do solemnly swear by the ever living God, that I will support the Constitution of the United States and the State of Colorado, and faithfully perform the duties of the office of Sheriff, upon which I am about to enter."
Enlow was neither charged with nor convicted of taking pay-offs. The mere doing of a prohibited act by an official, without his conviction therefor, does not create a vacancy. State v. Henderson, 166 Miss. 530, 146 So. 456.
It has been suggested that such construction gives an officer-holder who is a law violator the power to retain his office, and that the county is rendered helpless to remove such unworthy servant. But the law has provided other machinery for removal. The people of Jefferson County were not remediless; they could have instituted proceedings, which might have resulted, in Enlow's removal from office long before he tendered his resignation. The remedy is contained in the following language from C.R.S. '53, 40-7-47: "Every * * * sheriff * * * who shall be guilty of any palpable omission of duty, or who shall willfully or corruptly be guilty of oppression, malfeasance or partiality in the discharge of his duties, shall upon conviction thereof be fined in a sum of not exceeding two hundred dollars. The court shall have the power upon the recommendation of the jury to add to the judgment of the court that any officer so convicted shall be removed from office. * * * It shall be the duty of the court when the judgment shall extend to removal from office, to cause immediate notice of such removal to be given to the proper department, in order that the vacancy thus occasioned may be filled." (Emphasis supplied.) In its wisdom the legislature made the fine which could be imposed nominal so that the jury would have no reluctance in recommending removal in a case warranting such action. Thus, it will be seen that the acceptance of pay-offs, if proved, might have resulted in the removal of Enlow in a proper proceeding, timely brought.
Two matters remain to be discussed. Much was said in oral argument about the failure of the legislature to label as infamous crimes murder and treason, and that therefore the court should not construe as descriptive of infamous crimes C.R.S. '53, 39-10-18 and 40-2-31. It has been stressed in the briefs and was stressed in oral argument that public policy demands an interpretation of the laws in such manner as would work the automatic severance of Enlow from office upon his conviction as here appears, because of the baleful and baneful influence in a political light of any contrary ruling. But we are confronted with laws as they are and not, may we say for the sake of argument, as they should be; and, under such circumstances, we merely counsel that such arguments are better addressed to the legislature than to the courts. Whatever may be the true policy of the lawmaking body to pursue is a matter for that department of government to determine. The responsibility and true policy of the courts to pursue is to analyze and resolve the law as it is, and, if it is not what it ought to be, to leave it to the lawmakers to change it. Board of Trustees v. Starasinich, 128 Colo. 556, 264 P.2d 1033; Cole v. Lindsey, 120 Colo. 501, 211 P.2d 544.
We conclude that Enlow was not convicted of an offense within the terms of C.R.S. '53, 35-1-5, by the mandate of which a vacancy automatically would occur in the office; that the office became vacant only by reason of his resignation; and that the appointment of Wermuth upon the acceptance of such resignation constitutes him the lawful Sheriff of Jefferson County. The rule to show cause heretofore issued herein is discharged.
MR. JUSTICE DAY specially concurring in the result only.