Commonwealth v. Wotton

• Decision Date: 25 February 1909
• Parties: COMMONWEALTH v. WOTTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

201 Mass. 81

87 N.E. 202

COMMONWEALTH v. WOTTON.

Supreme Judicial Court of Massachusetts, Middlesex.

February 25, 1909

COUNSEL

John J. Higgins, Dist. Atty., for the Commonwealth.

George R. Swasey and Wm. P. Thompson, for defendant.

OPINION

LORING J.

The prisoner in the case at bar was indicted under Rev. Laws, c 210, § 7, for corruptly requesting a gift while a municipal officer, to wit, a member and chairman of the Lowell water board, 'with an understanding,' as it is alleged in the first count, or 'as a consideration,' as it is alleged in the second count, that he should vote for the employment of Lynch in the water department of that city. The prisoner rested on the government's evidence and the jury found him guilty. The case is here on exceptions to the refusal of the presiding judge to give certain rulings asked for, and to one portion of his charge to the jury.

1. The first contention of the prisoner is in effect that there was no legal water board and therefore that the defendant could not be found to be a municipal officer at the time in question.

The facts on which this contention is based are as follows:

The city of Lowell was authorized to construct and maintain a water supply by St. 1855, p. 830, c. 435. It was provided by section 5 of that act that the powers thereby given to the city should be exercised 'by such commissioners officers, agents and servants as the city council shall from time to time appoint and direct.' The same provision was reenacted by St. 1869, p. 654, c. 351, § 5, providing for an extension of the water supply. The new charter granted to the city in 1875 (St. 1875, p. 751, c. 173, § 7) provided that the city council should provide by ordinance for the election of all officers not therein otherwise provided for.

By an ordinance duly passed by the city council on January 4, 1889, being chapter 45, § 1, of the ordinances of the city published in 1894 by order of the city council, it was provided that on and after 1890 the water board should consist of five members, four of whom should be citizens of Lowell not holding any other municipal office, and that the fifth should be a member of the board of aldermen. This ordinance had not been modified by the city council when the matters here complained of took place.

By St. 1896, p. 366, c. 415, § 7, it was provided that 'neither the city council nor either branch thereof nor any committee or member thereof shall directly or indirectly take part in the employment of labor, the purchase of material, the construction, alteration or repair of any public works or other property.'

The effect of this statute was to repeal so much of the ordinance as provided for the election of a fifth member who should be a member of the board of aldermen, leaving the board a board of four members not holding a municipal office.

The prisoner's contention is that the provisions of St. 1896, p. 366, c. 415,§ 7, quoted above, were repealed by St. 1897, p. 69, c. 95, and that thereby the original terms of the ordinance became operative.

But if that were so the result here contended for would not follow. If the board in law ought to have been a board of five, but the board in fact elected in the manner provided for by law was a board of four, the four would be members of a legal water board. The case relied on by the prisoner (Norton v. Shelby County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178) is just what this case is not. There it was held that a man elected to the office of county commissioner created by a law forbidden by the Constitution was not an officer de jure or de facto, because the law creating the office was invalid.

There is in addition another answer to this contention, namely: St. 1897, p. 69, c. 95, § 1, did not repeal St. 1896, p. 366, c. 415, § 7. The purpose and effect of St. 1897, p. 69, c. 95, § 1, was to take away from the mayor and restore to the city council the appointment of the heads of departments. That did not repeal section 7, which disqualified members of the city council from taking part in the employment of labor or in the care, custody or management of any public works.

It follows that the third ruling asked for was rightly refused.

2. The second contention of the prisoner is that Rev. Laws, c. 210, § 7, does not apply to a de facto officer and the presiding judge ruled that it did.

We are of opinion that Rev. Laws, c. 210, § 7, does apply to an officer de facto, and that the presiding judge was right in saying that it did.

The difference and the only difference between an officer de jure and an officer de facto is that an officer de jure cannot be removed from his office in a proceeding instituted directly for that purpose and an officer de facto can be so removed. Until a de facto officer is removed in such a proceeding his acts are as valid as the acts of a de jure officer. Sheehan's Case, 122 Mass. 445, 23 Am. Rep 374; Coolidge v. Brigham, 1 Allen, 333. It is worth noting that the de facto officer whose acts were held to be valid in Sheehan's Case, ubi supra, was afterwards removed on an information filed for the purpose. Com. v. Hawkes, 123 Mass. 525. No reason can be urged for punishing the acceptance of a bribe by an officer de jure which does not apply with equal force when a bribe is accepted by an officer de facto. The principal argument put forward by the learned counsel for the prisoner in this connection is that when it is provided that an officer convicted...