Commonwealth v. AlbertCommonwealth v. Albert
- Reporters:
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- Before:
- Honan
The defendant, a member of the city council of Springfield and also a member of the board of supervisors of the department of streets and engineering, a municipal board authorized in behalf of the city to award contracts for the construction of bridges, was tried by a judge, without a jury, and convicted upon two indictments. The first indictment charged him with a violation of
We now consider the first case and shall briefly refer to facts that could have been found to have been established by the evidence. Proposals for the construction of a high*241way bridge were opened and read by the municipal board, which consisted of the mayor, an alderman and the defend^ ant, on January 31, 1936, in accordancе with the advertisement for bids. The invitations for proposals recited that the successful bidder must furnish a satisfactory surety bond, and the form of the proposal itself left a space in which to furnish the name of the surety company. After opening the bids, the board went into executive session and voted that the contract be awarded to the lowest bidder, A. L. Phelps, Inc. The bid of this company (hereinafter referred to as the contractor) disclosed the name of the proposed surety company if its proposal was accepted. The invitations for proposals provided that “Written notification of the acceptance of any proposal sent by Registered Mail to the address given on the proposal form shall be considered an adequate notice of the acceptance of said proposal.”
On the morning of February 4, 1936, one Phelps, an officer of the contractor, went to the city hall to attend a conference with sоme representatives of a railroad corporation relative to the construction of the bridge. The city engineer gave him a slip of paper upon which was written a telephone number. Phelps called the number and a pеrson, who said he was Charles Albert, congratulated him upon being the lowest bidder and inquired from whom he intended to secure the bond. Phelps replied that he had already arranged for the bond. The person with whom he was talking on the telephone then offered to extend the time for completion of the contract to one hundred twenty days. Twenty minutes later the same person with whom he had previously talked called upon the telephone and told Phelps that “they” would not acceрt a bond from the surety company that the contractor offered, and that unless Phelps withdrew the bond and purchased one from one Simons “they would see to it that the contract was never signed.” Phelps told him that he would take the matter up with one who handled his insurance, and he was then told that, although he could not be forced to withdraw the bond he had offered, he “had better play ball because the *242board of supervisors would have the last say on the job.” Phelps then saw one Baldwin who had charge of the insurance for the contractor. Baldwin, on February 4, 1936, called the telephone number of the defendant and inquired if the man speaking was Charles Albert, and, when informed that he was, Baldwin gave his name and said that he was the insurance аgent of the contractor and he asked the man speaking (who could have been found to be Albert) what objection he had to the surety company that the contractor intended to offer as the surety upon its bond. Albert said it was not acceptable to the city. Baldwin stated that this company was acceptable to the Federal and State governments, and that the city had one or two bonds from this company in amounts a great deal larger than the bond in the present cаse. Albert again stated that this surety company was not acceptable to the city. Baldwin then asked if it would be agreeable if he should pay his full broker’s commission to Samuel Simons and Albert replied that that would be all right. Baldwin then telephoned Simons in rеference to paying the commission on the bond to him and he paid the full broker’s commission to Simons on February 8, 1936. Under date of February 6, 1936, the contractor received five copies of the contract for its signature. No other parties hаd then executed the contract. The contractor was advised by registered mail, under date of February 7, 1936, that the board had on January 31, 1936, awarded the contract to it and that the board had further voted to allow one hundred twenty days for the cоmpletion of the contract. Thereafter the contracts were signed and the work was performed by the contractor.
The statute,
The Commonwealth furnished a bill of particulars specifying that the defendant corruptly requested Phelps to seсure a bond from Simons in consideration for the defendant’s vote to award the contract to Phelps’s company. These specifications set forth the method and means by which the Commonwealth intended to prove the offence charged in the indictment was committed, and restricted the scope of the indictment and the manner of proof to the grounds alleged in the specifications. The indictment is to be read with the specifications, Commonwealth v. Snelling, 15 Pick. 321; Commonwealth v. Giles, 1 Gray, 466; Commonwealth v. Haywood, 247 Mass. 16, and the latter are a part of the record. Commonwealth v. Howard, 205 Mass. 128. Commonwealth v. Gedzium, 259 Mass. 453. Commonwealth v. Snyder, 282 Mass. 401.
It is undisputed that the vote to award the сontract to the contractor was passed at a meeting of the municipal board held on January 31, 1936. There was no evidence that the defendant had made any request of Phelps until February 4, 1936. The specifications set forth categorically that the alleged corrupt agreement between the defendant and Phelps was made before the defendant voted to award the contract, and that the said agreement was the consideration for the vote that was to be taken by the defendant at the meeting of the municipal board. The evidence tended to show that the defendant and Phelps had entered into an agreement on February 4, 1936, by which, in consideration *244of Phelps’s securing a bond from Simons, the defendant agrеed to sign the contract. Proof of this agreement even if violative of the statute was insufficient to prove the alleged corrupt agreement set forth in the specifications. The specifications could have been amended tо correspond with the proof.
In view of the conclusion we have reached it is unnecessary to consider the various other assignments of error. *245They may not be presented in the same form at the next trial.
The principal contention of the defendant in the second case is that he was not personally interested, directly or indirectly, in the contract between the contractor and the city. The indictment alleged that he had such an interest; and the bill of particulars stated that the defendant had a personal interest in the contract in that he corruptly requested Phelps to secure the bond to accompany the contract from one Simons, and that the defendant was to benefit personally in that it was agreed that the commission for the bond was tо be paid to Simons. The statute,
There are interests based upon sympathies and prejudices, upon feelings and emotions, which may be powerful factors exerting consciously or unconsciously a material influence upon official conduct. Such interests are too indefinite and uncertain to furnish standards for the practical administration of the criminal law. The law does not аttempt to reach them. They are not within the scope of the instant statute. But what the law seeks and insists upon is that a municipal officer in making contracts for the city shall not serve in a dual capacity. He cannot law*246fully execute a contract where he stands in such relation to it that he will thereby secure a profit or sustain a loss. He can have no proprietary interest in the contract. A contract that will affect his financial worth is one concerning which he is barred frоm acting as a representative of the city. The words “personally interested” must be construed to mean interested in a pecuniary or proprietary sense. Boston v. Simmons, 150 Mass. 461. Sylvester v. Webb, 179 Mass. 236, 240. Slocum v. Medford, 302 Mass. 251, 254. Wayman v. Cherokee, 204 Iowa, 675. O’Neil v. Flannagan, 98 Maine, 426. Tuscan v. Smith, 130 Maine, 36. Thompson v. School District No. 1, 252 Mich. 629. Harrison v. Elizabeth, 41 Vroom, 591. People v. Hyde, 156 App. Div. (N. Y.) 618. Wilson v. New Castle City, 301 Penn. St. 358. Mumma v. Brewster, 174 Wash. 112. White v. Board of Education, 117 W. Va. 114.
The evidence, which need not be further narrated, did not prove that the defеndant was interested either directly or indirectly in the contract between the city and A. L. Phelps, Inc., and the first and seventeenth requests, that upon all the evidence the defendant was entitled to an acquittal on each of the two counts of the indictment, ought to have been given.
In the first case the judgment is reversed and in the second case the exceptions are sustained.
So ordered.