Hanback v. District of Columbia , 35 A.2d 189 ( 1943 )

HOOD, Associate Judge.

Appellant was convicted of operating a rooming house without having first obtained a license. He was sentenced to pay a fine of $25 or serve twenty-five days. He immediately paid the fine and three days later filed with this court an application for appeal. The application was opposed by the District on the ground, among others, that payment of the fine had made the case moot. We granted the application in order to decide this question of general importance.

It has long been settled in this jurisdiction and in the federal courts that an appellate court will not review a moot case. This court, in Price v. Wilson, D.C.Mun.App., 32 A.2d 109, said: “The applicable law was clearly stated many years ago by the Supreme Court in Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 133, 40 L.Ed. 293: ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.’ ”

The authorities are not in agreement on the right of appeal in a criminal case where the judgment imposed has been satisfied by payment of a fine. In 24 C.J.S., Criminal Law, § 1668, it is stated: “According to the weight of authority, however, where accused in -a criminal case voluntarily pays the fine imposed on him, he waives his right to an appeal, or to a review by certiorari.” In 2 Am.Jur., Appeal and Error, Sec. 231, it is said that “in a majority of the jurisdictions the view is taken that a voluntary payment of the fine terminates the action and precludes a review of the conviction.” The cases on the question are collected in annotations in 18 A.L.R. 867, and 74 A.L.R. 638.

Upon conviction appellant could have stayed the execution of the judgment, pending final action on his application for appeal, by entering into a recognizance. This procedure is provided by Code, Section 17 — 103; and though the section in terms applied to the former practice of applications for writs of error to the Police Court, now replaced by the Criminal Division of the Municipal Court, from the United States Court of Appeals, the same practice is followed on appeals and applications for appeal from the Municipal Court to this court. Neither this court nor the Municipal Court has promulgated a different or contrary rule. Appellant made no attempt to secure a stay of the judgment by such procedure, nor does he contend that he could not have done so. In view of the established practice we must assume that he might have stayed judgment. Instead he complied with one of the alternative penalties of the judgment. Payment of the fine, in view of his failure to attempt to stay the judgment, was voluntary.

A complete satisfaction of the judgment was effected by payment of the fine. In Re Bradley, 318 U.S. 50, 63 S.Ct. 470, 471, the petitioner was sentenced to six months imprisonment and payment of a fine of $500, though legally the sentence could be only a fine or imprisonment. After payment of the fine, the trial court, realizing that the sentence was erroneous, attempted to amend it by omitting the fine and retaining only the imprisonment. The Supreme Court held that upon payment of the fine the petitioner was entitled to be free from further imprisonment, saying: “When, on October 1, the fine was paid to the clerk and receipted for by him, the petitioner had complied with a portion of the sentence which could lawfully have been imposed. As the judgment of the court was thus executed so as to be a full satisfaction of one of the alternative penalties of the law, the power of the court was at an end.”

If payment of the fine satisfies the judgment for one. purpose, it satisfies it for all purposes. Can we review a fully executed and satisfied judgment? Whatever may be the rule in the state courts, we think we must be guided by the recent opinion in St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 911, 87 L.Ed. 1199. There, appellant had been sentenced to a term of imprisonment for criminal contempt in refusing to answer a question put to him before a grand jury. The District Court and the Circuit Court of Appeals, 2 Cir., 132 F.2d 837, denied him bail; he did not apply to the Supreme Court for a stay; and when the case reached the Supreme Court appellant had served his sentence. The court said: “We are of opinion that the case is moot because, after petitioner’s service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate. A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it. (Citations) The sentence cannot be enlarged by this court’s judgment, and reversal of the judgment below cannot operate to undo what has been done or restore to petitioner the penalty of the term of imprisonment which he has served.”

In the case before us the judgment could be satisfied by service of sentence or payment of fine. Either effected a final termination of the case. Payment of the fine here was no more involuntary than was service of time in the St. Pierre case; and we can no more restore to appellant the fine he has paid than the Supreme Court could restore to St. Pierre the time he had served. It may be that if we reversed appellant could recover his fine through some administrative proceeding but neither we nor the trial court could order the District to restore to him the fine he has voluntarily paid.¹

It may be said that appellant did not pay the fine with the intention of thereby complying with the judgment and terminating the proceeding. However, he made no protest when he paid the fine and gave no notice of an intent to appeal. He may not have intended taking an appeal when he paid the fine, and later changed his mind. At least, no claim is made that the payment was made by mistake. Whatever his intention was is not material, the material fact being “the undisputable fact that his action, however, induced, has left nothing to litigate.” Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 264, 67 L.Ed. 620.

The authorities permitting appeals where fines have been paid, and in some instances even where sentences have been served, say the appeal should be allowed to give appellant an opportunity “to clear his reputation,” to “undo the disgrace and legal discredit,” to be “relieved of the odium and disgrace,” and to “remove the stigma” of the convictions.² This view was urged on the Supreme Court in the St. Pierre case but the the court rejected it, saying: “Petitioner also suggests that the judgment may impair his credibility as witness in any future legal proceeding. But the moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review. Since the cause is moot, the writ will be dismissed.”

Appeal dismissed.

1 A11 fines paid under judgments of the trial court immediately become the property of the United States or the District of Columbia, according to the charge upon which the fine is adjudged. Code 1940, § 11-606.

2 State ex rel. Lopez v. Killigrew, 202 Ind. 397, 174 N.E. 808, 810, 74 A.L.R. 631; Commonwealth v. Fleckner, 167 Mass. 13, 44 N.E. 1053; People v. Marks, 64 Misc. 679, 120 N.Y.S. 1106, 1109; Roby v. State, 96 Wis. 667, 71 N. W. 1046, 1047.