Commonwealth v. Witman

• Decision Date: 01 April 1907
• Docket Number: 338
• Citation: 217 Pa. 411,66 A. 986
• Parties: Commonwealth v. Witman, Appellant
• Court: Pennsylvania Supreme Court

66 A. 986

217 Pa. 411

Commonwealth v. Witman, Appellant

No. 338

Supreme Court of Pennsylvania

April 1, 1907

Argued February 19, 1907

Appeal, No. 338, Jan. T., 1906, by defendant, from judgment of C.P. Berks Co., Oct. T., 1905, No. 40, on verdict for plaintiff in case of Commonwealth ex rel. Ira G. Kutz District Attorney, v. William Abbott Witman. Affirmed.

Quo warranto for violating sec. 66 of the act of March 31, 1860. Before ENDLICH, J.

The facts are stated in the opinion of the Supreme Court.

The court gave binding instructions against the defendant.

Verdict for plaintiff upon which judgment of ouster was entered.

Error assigned was the instruction of the court.

The specifications of error are dismissed, and the judgment is affirmed.

W. K Stevens, of Stevens & Stevens, C. H. Ruhl and Wm. Abbott Witman, Jr., for appellant. -- If the plaintiff had any cause of action under the facts as shown by the evidence, the court should have left to the jury the question of whether the respondent was directly or indirectly interested in the contract made by John A. Witman with the city of Reading.

The facts do not show that the defendant has done anything whereby a forfeiture of his office of select councilman from the Thirteenth ward can be decreed: Com. v. Cooke, 50 Pa. 201; King v. Burrell, 12 Ad. & E. 460; U.S. v. Wiltberger, 18 U.S. 76; State v. Powers, 36 Conn. 77; Miller v. Miller, 44 Pa. 170; Com. v. Gouger, 21 Pa.Super. 217; In re School Directors of Kingsley Twp., 5 Pa. Dist. Rep. 750; McHenry's Petition, 6 Pa.Super. 464; Com. v. Krickbaum, 199 Pa. 351; Trainer v. Wolfe, 140 Pa. 279; Com. v. Christian, 9 Phila. 556; Washington Twp. v. Shoop, 2 Pa. Dist. Rep. 639.

Frederick W. Nicolls, with him Harry F. Kantner, for appellee. -- Under the evidence in the case the court below had a right to determine that the respondent was interested in the contracts for furnishing supplies to the city: Hunnings v. Williamson, L.R. 11 Q.B. Div. 535; Doll v. State, 45 Ohio 445 (15 N.E. Repr. 293); Milford Borough v. Milford Water Co., 124 Pa. 610; Com. v. DeCamp, 177 Pa. 112; Todd v. Robinson, L.R. 14 Q.B. Div. 739; Whiteley v. Barley, L.R. 21 Q.B. Div. 154; McIlhenney v. City of Superior, 32 Neb. 744 (49 N.W. 705); Bell v. Quin, 4 N.Y.S. 146; Meigs v. Lewis, 164 Pa. 597.

Sec. 66 of the act of 1860 applies to a councilman who has an interest in a municipal contract with himself, with his firm, or with another person, even though such contract is not with a corporation: Com. v. Hancock, 2 W.N.C. 557; Coxe's Case, 1 Pa. Dist. Rep. 702; Com. v. Hoyt, 31 Pa. C.C. Rep. 200; Rush Twp. Overseers v. Lynn, 4 Pa. Dist. Rep. 651; Kennett Elec. Light Co. v. Kennett Square Borough, 4 Pa. Dist. Rep. 707; Com. ex rel. Kepner v. Shepp, 10 Phila. 518; Com. v. Caven, 15 Pa. Dist. Rep. 291; Milford Borough v. Milford Water Co., 124 Pa. 610; Com. v. DeCamp, 177 Pa. 112; Com. v. Miller, 31 Pa.Super. 309.

Before MITCHELL, C.J., FELL, BROWN, POTTER and STEWART, JJ.

OPINION

MR. JUSTICE POTTER:

The portion of section 66, of the Act of March 31, 1860, P.L. 382, which is here directly involved, provides as follows: "nor shall any member of any corporation or public institution, or any officer or agent thereof, be in anywise interested in any contract for the sale or furnishing of any supplies, or materials to be furnished to, or for the use of, any corporation, municipality, or public institution of which he shall be a member or officer, or for which he shall be an agent, nor directly nor indirectly interested therein, nor receive any reward or gratuity from any person interested in such contract or sale."

It is contended by counsel for appellant that the words "any member of any corporation," signify a corporation other than the one to which the supplies are to be furnished. We do not so read the act. These words refer to the corporation purchasing or receiving the supplies or materials, and of which the individual is a member, an officer or an agent. It is plainly intended to prevent anyone who is a member, officer or agent of any corporation, municipality or public institution from being in anywise interested, directly or indirectly, in the furnishing of supplies or materials to the corporation, municipality or institution with which he is officially connected. The statute intends to prohibit persons from occupying a position in which they will be virtually contracting with themselves. In dealing with this identical section, in Com. v. Miller, 31 Pa.Super. 309, Judge RICE said: "The object which the legislature had in view was the prevention of the danger of temptation, incident to a relation in which the self-interest of the officer of the corporation or municipality purchasing the supplies may come into conflict with the interest of the corporation or municipality." He also cites an apt statement from 8 Tomlin's Brown, 72, quoted and approved by this court in Everhart v. Searle, 71 Pa. 256, as follows: "No man can serve two masters. He that is intrusted with the interests of others cannot be allowed to make the business an object of interest to himself, because, from a frailty of nature, one who has the power will be too readily seized with the inclination to use the opportunity for serving his own interest at the expense of those for whom he is intrusted. The danger of temptation from the facility and advantage of doing wrong which a particular situation affords, does, out of the mere necessity, work a disqualification."

We have no doubt whatever, that the prohibition of section 66, of the act of March 31, 1860, applies to a councilman of a municipal corporation who is interested directly or indirectly in furnishing supplies to, or for the use of, the municipality of which he is an officer. The defendant in this case, being a councilman of the city of Reading, is clearly within the class of officials enumerated in the statute, who are forbidden to have any interest in furnishing supplies to the municipality. The attitude of this court has always been consistent with this view. Thus in Milford Boro. v. Water Co., 124 Pa. 610, it was said: "The act of 1860 is another and a valuable safeguard thrown around municipalities. It was passed to protect the people from the frauds of their own servants and agents." Chief Justice STERRETT said in Com. v. DeCamp, 177 Pa. 112: "Section 66 is virtually a transcript of sections 1 and 2 of the Act of April 26, 1855, P.L. 328. As was doubtless intended by the revisers of our criminal code, its scope is broad and comprehensive." And in Marshall v. Ellwood City Boro., 189 Pa. 348, Justice GREEN, said: "The criminal code of 1860 prohibited a member of a municipality from being interested in a contract for furnishing supplies or materials to the corporation, and imposed personal penalties upon him if he violated the act."

The learned trial judge in this case well said: "There can however, be no doubt that the term 'corporation' includes, in its legal as well as in its popular sense, an incorporated city. The sole ground upon which the argument that it is not to be so understood here rests, is the omission of the term 'municipality' in the words of the second clause, 'nor shall any member of any corporation or public institution,' etc. Yet it is clear that the joinder of 'corporation or public institution' without anything more, indicates what sort of corporation is meant, i.e., corporations of a public nature, corporations in the nature of public institutions, ejusdem generis with such. The word 'corporation,' therefore, in this phrase standing alone, has virtually the same meaning as if the word 'municipality' were added to it. So true is this that it cannot, without going further, be regarded as including mere private corporations. If, then, the phrase 'any corporation, municipality or public institution' is descriptive of a certain class of corporations as the subject and the only subject of the legislation; and if the phrase 'any corporation or public institution' is, under accepted rules of interpretation, descriptive of the same class, it follows that the same meaning must be given to both, notwithstanding the insertion in the one, and the omission from the other, of a term which is fairly embraced in the more comprehensive of the terms occurring in both. It is, indeed, well settled that the same language repeatedly occurring in the same statute is to be understood in the same sense throughout: Maxwell, Int. of Stat., p. 394. And this means not only literally identical phraseology, but, disregarding insignificant variations, phrases whose material constituents and legislative or legal import are...