Commonwealth v. Albert
| Decision Date | 24 February 1942 |
| Citation | 40 N.E.2d 21,310 Mass. 811 |
| Parties | COMMONWEALTH v. CHARLES S. ALBERT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 18, 1941.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Bribery. Public Officer.
Municipal Corporations, Officers and agents. Practice, Criminal Exceptions: whether error shown. Error, Whether error shown.
Evidence merely that a municipal officer, who was a member of a board having power to contract for the municipality as to certain public improvements, in bad faith, after the award of such a contract, threatened the contractor that, unless the commission on a bond required of the contractor be paid to a broker whom the officer named, the contract would not be executed for the municipality, and that the commission was so paid, did not warrant a finding that such officer had any proprietary or pecuniary interest in the commission upon which he could be found guilty of violation of that part of Section 8 of G. L.
(Ter. Ed.) c. 268 imposing a penalty for corruptly requesting or accepting a gift or gratuity or promise thereof.
The benefit to be conferred upon a municipal officer through the performance of a promise "to do an act beneficial to him," corruptly requested by him within Section 8 of G. L. (Ter Ed.) c. 268, need not be a pecuniary benefit; it is sufficient if a reward or personal advantage will accrue to him from such performance and that he considers the value thereof so highly as to permit it to influence his official conduct, provided the reward or advantage is in fact something of value as that term is generally understood.
A municipal officer who was one of a board having power to contract for the municipality as to certain public improvements might be found guilty under Section 8 of G. L. (Ter. Ed.) c. 268 of corruptly requesting from a contractor, to whom the board had awarded a contract, a promise to do an act beneficial to the officer as the price for his executing the contract, on evidence that, in bad faith, he at first had objected without adequate reason to a bond offered by the contractor and had stated that no bond would be acceptable unless procured through a broker whom he named, but that later he had withdrawn his objection and had executed the contract upon an agreement being made that the commission on the bond be paid to that broker and that the commission had been so paid.
Error requiring a new trial, after a general finding by a judge without a jury of guilt under charges of the crimes described in Section 8 of G.
L. (Ter. Ed.) c 268, was disclosed by a record showing that, while such finding was warranted under the charge based on one provision of the statute, the trial judge erroneously had refused to rule that it was not warranted under the charge based on another of its provisions and had not stated upon what charge his finding was made.
INDICTMENT, found and returned on September 25, 1939. The case previously was before this court and, in a decision reported in 307 Mass. 239 , judgment was reversed. The second hearing was by Collins, J.
G. J. Callahan, (C.
S. Lyons & E.
P. Brooks with him,) for the defendant.
J. F. Kelly, Assistant District Attorney, for the Commonwealth.
The defendant, a municipal officer of Springfield, has been found guilty by a judge of violating G. L. (Ter. Ed.) c. 268 Section 8. The indictment charged that he "did corruptly request a gift or gratuity or a promise to make a gift or to do an act beneficial to him under an agreement or with an understanding that his vote" would be given in a particular manner upon a matter that was then or would be brought before him in his official capacity. The defendant appealed from the finding of guilty and the case is here with a transcript of the evidence, a summary of the record, and assignments of error based upon refusals to grant certain requests for rulings.
It was undisputed that the defendant was a member of the city council of Springfield during 1936 and, with the mayor and an alderman, composed the board of supervisors; that the board, among other powers, was authorized to contract in behalf of the city for certain public improvements including the construction of highway bridges; and that, early in January, 1936, it advertised for the proposals for the construction of a new bridge to carry Armory Street over the tracks of the New York, New Haven & Hartford Railroad Company. These proposals were opened at a meeting of the board at four o'clock on January 31, 1936. The board then voted to award the contract to A. L. Phelps, Inc., the lowest bidder, and to allow the contractor one hundred twenty days from the date of the execution of the contract within which to complete the work.
There was testimony that one Phelps, the treasurer of
A. L. Phelps, Inc., hereinafter called the contractor, went to the city hall on the morning of February 4, 1936, to attend a conference with the city and railroad engineers; that while there he received a slip of paper from one Phillips, the superintendent of the department of streets and engineering, upon which was written a telephone number; that he dialed the number and talked to Albert, who, after congratulating Phelps on being the low bidder, told him that the seventy-five days named in the proposal of the contractor was not long enough for a satisfactory job and that "I think it should be extended to 120 days, which we are perfectly willing to do.
If this is done, why, we expect you to reciprocate.
" Albert then asked him where he intended to purchase "the performance bond" and Phelps replied that he had already arranged for the bond. Later, while attending the conference of these engineers, he was called to the telephone and Albert told him that the bond that was offered was not acceptable, in fact, no bond would be acceptable unless it was purchased through the office of Simons and Simons. Albert said that they did not like the surety company (which the contractor as shown by its proposal intended to have issue the bond to accompany the contract) "and that I [Phelps] better play ball or they would see that the contract was never signed." Phelps told Albert that he would take the matter up with the one who attended to his insurance. Phelps told Baldwin, who had charge of the contractor's insurance, about the conversations he had had with Albert. Baldwin, on the afternoon of February 4, 1936, telephoned to Albert and, after giving him his name and stating that he had charge of the insurance for the contractor and that he had learned from Phelps that Albert had said that the bonding company which the contractor intended to have as surety upon the bond was not acceptable to him, inquired of Albert what objections he had. Albert replied that this company was a nonconference company and that "it just wasn't acceptable." Baldwin directed his attention to the fact that this bonding company had given bonds to the national and State governments for amounts much larger than the bond in the present case, and that the city of Springfield had accepted a bond from this company in a much larger amount than that of the proposed bond. Albert then said that this particular bonding company was not acceptable. Baldwin then asked him whether, if the full brokerage commission were given to Simons, Albert would accept the company, and he replied, "All right." Baldwin then telephoned to Simons informing him of Albert's objections to the bonding company and urging him to have Albert accept the bonding company, and told Simons he was to be the broker on the bond. Simons told Albert on February 6, 1936, about this telephone conversation with Baldwin, and that Simons was to receive the broker's commission on the bond. Simons advised Albert "to forget about the thing" as it "was not large enough for him to be so stubborn," and Albert replied, "All right." Baldwin paid the commission amounting to $35.73 to Simons on February 8, 1936.
There was further testimony that the contractor was furnished with copies of the contract on February 7, 1936, which it executed and filed with the bond in the office of the board, and that the contract was then executed by the city. On February 8, 1936, the contractor was notified that the contract had been awarded to it. There was other evidence which was in conflict with that we have mentioned but which it is not necessary to recite. The bill of particulars originally set forth that the defendant corruptly requested Phelps to secure a bond from Simons in consideration for the defendant's vote to award the contract to the contractor, Commonwealth v. Albert, 307 Mass. 239 , but, after the first trial, the particulars were amended by alleging that the defendant made his request of Phelps to secure the bond from Simons as the consideration for the defendant permitting the execution of the contract.
Although the board had voted to award the contract to the contractor at its meeting on January 31, 1936, it was not until February 7, 1936, that the copies of the contracts had been furnished to the contractor for execution and delivery to the city, and they were not executed in behalf of the city until after they had been executed by the contractor and delivered to the city.
The vote of the board did not constitute a contract but was a mere preliminary to the execution of a written contract. Dunham v Boston, 12 Allen, 375, 377. Until the contract was executed in behalf of the city by the board, the board could rescind its vote and decline to execute the contract without incurring any liability to the contractor. Edge Moor Bridge Works v. Bristol, 170 Mass. 528 . Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218 , 223. John J. Bowes Co. v. Milton, 255 Mass. 228 . Daddario v. Medfield, ...
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