85 N.J.L. 220 | N.J. | 1913
Lead Opinion
The opinion of the court was delivered by
We approve of the opinion of the Supreme Court, but in view of the vigor and earnestness with which counsel for the plaintiff in error pressed upon us points not dealt with by that court, we think it well to add some suggestions.
The right to order a special term of the Atlantic Oyer has been sufficiently vindicated by the Supreme Court in State v. McDevit, 55 Vroom 11.
Tlie right in a proper case to award a venire for a grand jury to elisors has been settled by our opinion in State v. Zeller, 54 Vroom 666. The circumstances under which the venire issued in the present case are, however, different, In the Zeller case, the sheriff had summoned a grand jury, and the prosecutor of the pleas challenged the array upon' the ground that a complaint was to be made against the sheriff;
The indictment contains two counts. One charges that Kuehnle was a member of the board of water commissioners of Atlantic City which directly managed and controlled the city water works, and was authorized by law to purchase plant,
The indictment attempts to charge a violation of section 32 of the Crimes act. Comp. Stat., p. 1755. The first count, which is the only one of importance in the pending case, charges a violation of the first part of this section, which forbids the public officers therein mentioned from being directly or indirectly concerned in any agreement or contract for any improvement to be contracted or made for the public use or at the public expense. The language of the statute cannot be taken literally. It is perfectly proper, and in fact commendable, for all citizens and most of all for the officers charged therewith to be concerned in contracts for public improvements; it would be absurd to suppose that the legislature meant to prohibit any concern direct or indirect on the part of those whose public duties required them to be concerned. We must in this, as in all cases, give a reasonable construction to the language, or as is now quite commonly said, apply the rule of reason. Looking at the act in the light of reason, we think it manifest that what the statute meant to prohibit was a selfish concern on the part of the officer adverse to the public, and this concern would, as things go, generally, perhaps always, be a pecuniary concern. But even a pecuniary or selfish concern would not always suffice. Every taxpayer and every owner of real estate has a selfish and pecuniary concern
That the owner of a controlling interest in a corporation may often be as much concerned in its contracts as if they were his own, is obvious, and although the interest of the holder of a single share in a great corporation like the United
The defendant urges that there was no sufficient proof that the contract was the contract of the United Paving Company, since there was no action shown by its board of directors. This, however, was not necessary. Murphy v. W. H. & F. W. Cain, Inc., 53 Vroom 557.
It is also argued very ingeniously that there could have been no contract between the city and the paving company since the very statute under which the defendant is now prosecuted would have rendered any such contract void, and hence no contract at all. Marley v. State, 29 Vroom 207, is relied on. That case involved a consideration of section 31 of the Crimes act forbidding the incurring of an obligation in excess of the appropriation, and it was properly held that no obligation could he imposed upon the county by a violation of law. The argument of the present defendant is based upon the idea that no contract can be made binding upon the municipality by a violation of section 32. The fallacy consists first in assuming that the contract mentioned in section 32 is a contract binding upon the municipality, and second in overlooking the fact that if the express contract was not binding, there was still an
It is argued that before a corrupt intent can be inferred the state must prove that the defendant intended to violate the statute. This intent seems to us a necessary inference if the acts of the defendant amounted to a violation. lie is chargeable with knowledge of the law and with intending to do what in fact he did. Those acts may indeed be done without corrupt intent, but whether they were or not was a jury question. There was evidence from which a corrupt intent might be inferred. The rejection of the lowest bid instead of rejecting all bids, the belief of the defendant that Lockwood was bidding for Cherry, the advice given in advance by the defendant to Cherry not to bid, the assent to an immediate assignment from Lockwood to Cherry of ninety-nine one hundredths of the contract in a writing expressing Lockwood’s •inability to finance the work, justify an inference that the defendant was consulted in' advance and knew that Lockwood made the bid to conceal the real contractor, while his relations through the United Paving Company with Oheny, its president, justify the inference, which the jury must have drawn, that the contract was in fact that of the United Paving Company!^ Concealment oí the real transaction would itself, in
Certain objections to the charge remain to be considered. The judge told the jury that the facts were not inconsistent with guilt, hut that they were not to adopt the guilt of the defendant on that account; that they must adopt that, inference which is innocent,; and if they could not reconcile the facts with honest conduct, they might draw the inference if it loads to the single inference of guilt, and they must adopt that. In effect, the judge here said yon may infer guilt if yon cannot, reconcile the circumstances with honest conduct, hut you must infer innocence if you can. We find no error in this.
There is perhaps more difficulty in the charge that it was for the jury to say whether the circumstances were such as to convince them beyond a reasonable doubt, that this contract was a bona fide contract made by the commissioners with Lockwood or not. Counsel for the defendant argues as if the last two words were not there, and says very properly that, it was not for the defendant to prove beyond a reasonable doubt that the contract was a bona fide contract with Lockwood, hut
The court further charged that under tlie indictment the jury might convict if they found that the state had proven its case beyond a reasonable doubt, and if they found that the defendant was either directly or indirectly concerned in the contract. This was merely stating in an abstract form the possibilities of a verdict under the indictment, just as the court frequently in a homicide case tells the jury that they may under the indictment convict of murder in tlie first degree, murder in the second degree, or manslaughter. The judge then in response to the request to charge that there was no evidence that the defendant was directly concerned and be must therefore be acquitted, charged that the jury need not find that he ivas directly concerned but might convict if they found that lie was indirectly concerned. Since, as we have already said, the averment of direct concern was immaterial and a mere conclusion of the pleader, since that averment does not charge a crime as distinct from the case where the concern is indirect, and since tlie facts averred in the indictment amount to a charge of indirect concern, of which facts the jury might find the defendant guilty, it was proper to refuse to direct an acquittal. Tlie judge then told the jury in effect that he did not think the facts made the defendant directly concerned. The result was that the charge was left much in the same shape as a charge in a homicide ease, where the judge after speaking of the possibilities of conviction under the in
We think it unnecessary to deal with the suggestions that section 33 of the Crimes act is unconstitutional, and that it does not apply to the water commissioners. It was proper to overrule the offer to prove by Shackelford that there were no transactions that would have made it desirable or necessary to destroy the books of the paving company. At best that would be merely Shackelford’s opinion.
The evidence of Boiee as to his custom of discharging men employed on the work was properly admitted. It tended in some degree to prove that the contract was being performed by the United Paving Company. We attribute no force to the argument addressed to the remark of the judge as to the probability of Cherry competing with his own company. It makes no difference whether the United Paving Company was or was not engaged in business competing with that of building water mains. They were surely engaged in a business that required the employment of workmen, and if their president engaged in a business that likewise required the employment of workmen in the same locality, they would compete in the labor market. The effect of the judge’s remark is unduly magnified in the brief of the plaintiff in error. The other assignments of error we think call for no remark.
The judgment must be affirmed.
Dissenting Opinion
(dissenting). Upon two grounds, both of which are sufficiently developed in the majority opinion, I rest my dissent.
The case of State v. Zeller, 54 Vroom 666, does not bring the case at bar within the doctrine of stare decisis, so as to
In that case the sheriff was accorded a trial and was found to be incapacitated. In this case he was not tried and incapacitated by a judgment, and the elisors were appointed without recourse to the coroners, or after any judgment disqualifying the coroners. This differentiating fact suggests the inquiry whether such a judicial prerogative is circumscribed by any limitations. Whether the inalienable guarantees which were supposed to be fundamental in English law, and which were presumed to hedge about the liberty of the citizen with what magna charta and the bill of rights denominated “the law of the land” lose their effectiveness in the presence of arguments ab inconvenimii addressed to the court in behalf of ihe state.
The argument of “the law of the land,” says an eminent authority, “was intended as a guaranty against arbitrary proceedings on the part of the king; the enforcement of execution without any judgment, or after a mere pretext of judgment.” Big. Hist. Prac. 155; 2 Hale P. C. 155.
All that we have here is the suggestion of the prosecuting officer, an ex parle affidavit, and a judgment thereon that incapacitated the sheriff, discarded the coroners, and brought forth a grand and petit jury, at the hands of a commission in nowise responsible to the people, as were the sheriff and coroners who were thus superseded.
In the light of historical facts the transition of this royal prerogative to the Supreme Bench can be justified only upon the theory that the fundamental maxim upon which it rested has also been transposed to judex non potest peccare. I am not prepared to concede the correctness or even the expediency of a doctrine fraught with such dangerous tendencies in an age when the very pillars of the constitution are not immune to unreasoning attack.
The following eases throw light upon the nature of the right of which defendant was deprived and make it manifest that what he was entitled to receive was a trial according to the law of the land, and that a hearing accorded to him upon
In Finley v. State, 61 Ala. 207, the Supreme Court of Alabama declares that “the exercise of such a power by the court would be in violation of the spirit of all our legislation and would convert the grand jury from a distinct independent body drawn and summoned by officers specially charged with that duty into a mere dependency of the 'court chosen by its absolute will.” In both of these cases the judgments of conviction obtained under such circumstances were reversed and the ratio decidendi was that the defendant had not been afforded a trial according to law, which in legal effect was that he received no trial at all, which question was not involved in State v. Zeller as I understand the issue determined in that case.
The defendant was convicted under a statute (Comp. Stat., p. 1755) which was intended to prevent a public official, charged with the execution of a public trust, from using the power committed to him for his personal purposes. The language of the act is that if he be “unlawfully interested” .or “directly concerned” in any contract or agreement, he becomes guilty upon conviction of a misdemeanor.
To show that the defendant was “unlawfully interested” and “directly concerned” in a contract which as president of a public .board he did not vote for, and which was awarded to one Lockwood, and subsequently assigned to the firm of Lockwood & Cherry, the state proved that the defendant was
The inference was permissible, although not necessary, that the paving company was interested and concerned in the firm’s contract; but excepting upon the theory that the defendant was the alter ago of the paving company, no inference could be reasonably drawn that he was interested or concerned in the firm’s contract with the board. One of the most convincing facts in the case that he was not interested and not concerned in the. contract, was that he did not vote for it, but refused to vote.
The practical danger inherent in an indictment of that nature, is that the experienced, successful and capable man of affairs, whose service should be sought by the public as a guarantee of intelligent and honest public service, is liable to be estranged from contact with public life by the construction of a statute,, which if he be a freeholder in the city, or a stockholder in a bank, endangers his liberty, and casts a stigma upon his rectitude.
USTothing short of active participation at least, with a corrupt motive which must be inferred from proved facts, should warrant the condemnation of a public official under such circumstances as are presented here.
There are cases like Stroud v. Consumers Water Co., 27 Vroom 423, and Taylor v. Jersey City, 5 Id. 390, where contracts have been invalidated by our courts upon certiorari because the evidence showed a personal interest or concern upon the part of the same member of the municipal body, voting for them. These cases are useful as indicating not only a common law, but a legislative policy in dealing with public questions of this nature; but we are not referred to any authority which contains the record of a criminal prosecution of the officials upon whose action those cases were determined.
If defendant’s motive was profit to be inferred from circumstances, the proof shows that the firm was a large loser by the contract. If his intent be worth considering it is proved that he failed to vote. Only upon the inference that the firm of Lockwood & Cherry was acting for the paving company, and that the latter company was -represented in some manner by the defendant, by reason of his stockholdings, can the verdict be logically supported, under the provisions of this statute; for in no manner was it established that the paving company eo nomine, by corporate action or otherwise, was committed to the project .s.o that it might be said that it was “unlawfully interested” or “directly concerned” in the contract.
It becomes manifest, therefore, that to attempt to support the verdict upon inferences that comport to say the least as logically with innocence as they do with guilt, is in essence tantamount to depriving the defendant of the benefit of a reasonable doubt, for to doubt his guilt under such circumstances is in legal effect to declare his innocence. Dunbar v. United States, 150 U. S. 185.
The statute being penal should be strictly construed; and its application to men holding public office should be reasonable in character, otherwise its very -existence upon the books, under the construction we now give to it, instead of serving to invite desirable men of affairs into the arena of public life, will serve only to repel them. This practical consideration is important only upon the question of the reasonable construction of the statute, and to my mind, it evinces beyond peradventure, that an interpretation involving such inimical consequences to the welfare of the body politic must have been beyond legislative contemplation. For these reasons the judgment should be reversed and a venire de novo awarded.
For reversal — Minttjrn, J. 1.