(dissenting). The somewhat anomalous position and provisions of sec. 4935, Stats., as it stood prior to 1919 is commented upon in the majority opinion.
I agree with the view that that section as it stood at the time of plaintiff’s conviction did not of itself work a forfeiture of office, that being effected by then sec. 17.02, Stats. Therefore said sec. 4935, Stats., as it stood all those years must have been intended to refer to persons whose right to office was forfeited under sec. 3, art. XIII, Const., and under sec. 17.02, or else to none at all. To give the reasonable construction to it and to which such beneficial statute is entitled, it would have to be held that it was intended to benefit those who so forfeited office by conviction rather than by a subsequent commitment; the statute therefore could not, in this essential, be literally followed.
Furthermore, its evident purpose was the giving to such particular class of unfortunate victims of a miscarriage of justice who had been unlawfully deprived, through the mistaken act of the sovereign, of the right to continue to hold and enjoy an office given under the laws of the sovereign, compensation or damages for such deprivation and measuring the amount thereof by the rate of the salary fixed for such office.
That the salary was considered as something over and above, or separate and apart from, the office itself is quite manifest, because otherwise the following quoted words from sec. 4935, Stats., where, after providing for restoration to office, it also says, “with all its rights and emoluments,” were rank surplusage, for plainly restoration to office would of itself and.without further pYoviso carry with it, as a matter, of right and law, the prescribed compensation so long as the office be further occupied and services ren*131dered therein. Such proviso, therefore, must be given weight and meaning in the construction of the entire statute. Such conclusion is further strengthened by consideration of ch. 362, Laws 1919. That, it is conceded, was a bill proposed by the revisor of statutes and must be considered in the light of the presumption that arises from the plainly prescribed statutory duties of such revisor, sec. 43.08, Stats., which defines his duties as. being “to formulate and prepare a definite plan for the order, classification, arrangement, printing and binding of the statutes and session laws,” and also, after preparation during the intervals of the legislature, “to present to the ‘judiciary committee of the senate . . . such consolidation, revision and other matters relating to the statutes.” His bills as presented, therefore, should be looked at in view of the statutory purpose so declared, that is, of simplifying and clearing up the existing law, rather than as proposals to make any material changes in the law. The very heading of this chapter indicates compliance with that duty of effecting the revision and consolidation rather than of making any substantial amendments, changes, or creating new rights. Some of its many provisions, it is true, expressly provide for minor amendments, but by sec. 14 of that chapter, and which is the one material here, the declared subject matter thereof is consolidation and revision, and the word amend is conspicuously absent. It provides for consolidation of sub. (5) of the newly thereby created sec. 17.03 with sec. 4935, the one here being considered, and also sec. 4507, which read:
“Any justice of the peace who shall be convicted of bribery or perjury or any other infamous crime, shall in the same sentence be expelled and removed from such office.”
This latter provision, in substance, has stood in the statutes as long if not longer than the other provisions so consolidated. It was originally § 7, art. I, “An act concerning justices of the peace,” on p. 321 of the Territorial Statutes of 1839, then sec. 264 of ch. 88, “Justices’ courts,” in the *132Revised Statutes of 1849 (apparently wrongly quoted in some of the revisions), then again as sec. 234 of ch. 120 of the revision of 1858, and after subsequent minor changes in language it subsequently appeared as sec. 4507. Through all of its changes, however, it was in accord with the general law covering removals from office, in that it was the conviction and not a commitment that worked a forfeiture. By its consolidation with the other provisions under said ch. 362, Laws 1919, the language of this section disappears altogether, and a justice of the peace is now evidently placed in the same general category with all other officeholders of the state. It could hardly be urged that the provisions of this revised chapter either amended or repealed the old sec. 4507. It was simply carried on and merged into sub. (5), sec; 17.03, and I think the same view should be adopted and conclusion arrived at as to what was intended to be done by the consolidation of said sec. 4935. It was condensation and clarification rather- than amendment. ,
For the foregoing reasons I think the plaintiff came within the reasonable terms of the statute as it stood at the time of his conviction so as to have been entitled to hi's present claim for compensation upon the reversal of the judgment of conviction though there had been no change in the statute.
I am also convinced1 that plaintiff was within the terms of sec. 17.03, Stats., as it. stood after the revision of 1919 and as it was in force at the time of the reversal. It is a highly remedial statute and should receive no harsh or strained construction. It is aimed to make a slight recompense to one who . has suffered a grievous wrong done through the instrumentalities of the sovereign, either state or national, by that which is subsequently found to have been a mistake or miscarriage of justice. That the required financial compensation is to be borne by a particular community .rather than by the state at large ought not to militate against its application.
That the salary is to be considered as merely the meas*133ure of compensation is much strengthened from the fact, that since 1913, when ch. 189 of the laws of that year created sec. 3203a, it has been provided that compensation, which under this law is a pure gratuity, should be given by the state to innocent persons who' had nevertheless .served terms of imprisonment upon conviction of a criminal charge.
Doubtless one who would come within the literal meaning of sec. 3203a and who happened' to be' an officeholder at the time of his conviction and thereby forfeited his office would not be entitled to compensation under the general terms of sec. 3203a and also under sub. (5), sec. 17.03, and would be confined, either by option or construction of law, to not more than one such method of relief; but nevertheless the idea of compensation is the basis of the one as much as of the other. It is a gratuitous compensation to be borne by the taxpayers, and whether of the commonwealth at large or of some particular community does not essentially altér the spirit and purpose of the laws.
Such features make a' substantial distinction between such a case as the one here, or one coming under sec. 3203a, and the situation where, under the doctrine of public policy as adopted by this court, after a choice from conflicting, decisions elsewhere, and as pronounced in Clausen v. Fond du Lac Co. 168 Wis. 432, 170 N. W. 287, it is held that municipalities, in the absence of specific statute, should not be required to pay the salary of an ousted de jure officer for a period for which it was paying for and receiving, the services of a de facto officer.
It is held by the majority opinion that to allow the plaintiff to recover under the statute as it stood after, the revision of 1919 and at the time of the reversal of the judgment when the term of his office had expired would be to give it a retroactive effect, citing as a basis for such ruling Keeley v. G. N. R. Co. 139 Wis. 448, 454, 121 N. W. 167, and Quinn v. C., M. & St. P. R. Co. 141 Wis. 497, 124 N. W. 653, both of which involved changes in the death-recovery *134statute made after, the death for which compensation was sought in the-several actions. But, as it was pointed put in the Quinn Case, the right to relief under that statute becomes an inchoate one upon the happening of an injury and ripens into a cause of action immediately upon the death, and the rights then so fixed at such respective periods cannot be added to or lessened by legislation (White v. M., St. P. & S. S. M. R. Co. 147 Wis. 141, 151, 133 N. W. 148); but to my mind the substantial and important distinction between the two cases is this: There is no right, inchoate or complete, to any subsequent salary as compensation arising upon the conviction. That works, by the constitution and the statute, an absolute forfeiture of office and thereby of salary. The right to the salary as a measure of compensation arises out of the reversal and. not from the conviction. The two are separate, distinct, and independent transactions. Plaintiff can base no right upon his conviction, which is, until reversed, absolutely disqualifying, binding, and controlling. When by subsequent proceedings a new result i's arrived at, namely, a reversal, then by and through such new proceedings and new conclusion — then and not until,then' — do his rights under the statute arise and become fixed. The time of his conviction would therefore be entirely immaterial.
So far as the plaintiff here is concerned, the benefits under sub. (5), sec. 17.03, Stats., first became applicable to hinrwhen- the reversal of conviction occurred, for until then he had no shadow or semblance of claim to them, and when that time came he was within all the conditions of the statute entitling him to such relief. Being in the nature of a gratuity, so far at least as compensation is made for the time for which he could render no services during the period of conviction, there is no question arising as to whether the statute so giving such gratuity is retroactive or not. There is no more need of considering the question whether there is an express or implied intention to have a retroactive effect, *135for such intention may be by implication as well as by express language (Read v. Madison, 162 Wis. 94, 100, 155 N. W. 954), as to this statute, than in the case of granting relief to persons who had previously suffered personal injury in connection with some state activity, of which the laws of each session of the legislature afford numerous instances. For example, in the session of 1919 there were allowances of $3,000 and $2,000, respectively, to persons injured by an aeroplane accident at the state fair in 1910, and another substantial allowance for injuries at the same place in 1917, and another to one whose husband had been killed at one of the state institutions.
In support of the motion there was a brief by /. M. Becker in pro. per., and in opposition thereto a brief signed by H. N. B. Caradine and Olin, Bu-tler, Thomas, Stebbins & Stroud.The judgment of the lower court, to my mind, should have been reversed.