People v. Barry
| Decision Date | 24 June 1974 |
| Docket Number | 15930--1,No. 2,Docket Nos. 14578,2 |
| Citation | 53 Mich.App. 670,220 N.W.2d 39 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel W. BARRY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for the People.
Douglas A. Chartrand, Smith, Magnusson & Anderson, Pontiac, Charles J. Porter, Condit, Denison, Devine, Porter & Bartush, Bloomfield Hills, for defendant-appellant.
Before QUINN, P.J., and DANHOF and ALLEN, JJ.
On July 8, 1971, defendant was indicted by an Oakland County citizens' grand jury and charged with a violation of section 601 of the Drain Code of 1956 as amended, M.C.L.A. § 280.601; M.S.A. § 11.1601. The statute provides:
'If any commissioner is interested directly or indirectly in the profits of any contract, job, work or services, other than official services, to be performed for the drainage district, he is deemed to be guilty of a misdemeanor, and the office of such commissioner shall be deemed vacant and the commissioner so convicted shall be incapable of again holding the office of county drain commissioner.'
On December 10, 1971, defendant was found guilty without a jury in the district court of the city of Pontiac, was sentenced to 90 days in jail and $100 fine, and filed claim of appeal to the Oakland County circuit court. On June 12, 1972, the Oakland County circuit court affirmed defendant's conviction but modified the sentence to provide that defendant either serve 90 days in jail or pay a fine of $100. The circuit court also determined that the portion of section 601 which precludes a convicted drain commissioner from holding office was a denial of equal protection of the law. Both parties appeal.
Defendant raises 8 grounds for reversal, 6 of which concern the propriety of the grand jury proceedings. 1 We find it necessary to determine only 1 issue, Viz., does the record show beyond a reasonable doubt that the difference in transportation costs between the M--59 property and the other available dump sites constituted an 'interest in the profits' as that term is defined in section 601 of the Drain Code. The trial court made the following specific findings of fact.
Number 1: Defendant, Daniel W. Barry, was the Oakland County Drain Commissioner during the period July 21, 1969 to October 13, 1969.
Number 2: There was a drainage project being completed in the City of Pontiac, the Brewer Drain, during the period July 21, 1969 to October 13, 1969.
Number 3: The Brewer Drain Project was being performed as a result of a contract between the Oakland County Drain Commission and the Weissman Contracting Company.
Number 4: The Brewer Drain was paid for by public funds.
Number 5: The defendant, Mr. Barry, had an interest in some land located at Cass-Elizabeth Lake Road and M--59 in Waterford Township during the period July 21, 1969 to October 13, 1969.
Number 6: That the defendant, Mr. Barry, requested, received and accepted fill dirt from the Brewer Drain.
Number 7: That there were available fill dirt dumping sites adjacent to the Brewer Drain project.
Number 8: That the cost of transporting the fill dirt to the defendant's property was borne by the contractor, Weissman Contracting Company.
Number 9: That the cost of transporting the fill dirt to the defendant's property in Waterford Township was more than the cost of transporting the fill dirt to the adjacent fill dirt dumping sites.
Number 10: That the difference in transportation cost was an interest in the profits of the contract between the Drainage District and the Weissman Contracting Company.
The conclusion of law based upon these facts is that the defendant has violated the provisions of MCLA 280.601 as charged in the indictment.
On appeal, the circuit court disagreed with the trial court's finding of fact number 10, and made its own finding that the fill material itself was a profit in the contract. 2
Section 601, enacted June 28, 1965 by 1965 P.A. 98 (effective March 31, 1966), replaced the former section 601 which restricted a drain commissioner's role in securing signatures on a petition for a new drain. 3
If the statute had omitted the words 'in the profits' this Court would not hesitate to affirm. There is no question but that defendant benefited. The property which he jointly held together with Leon Blachura and James R. Nichols was substantially improved without cost to the owners. Such conduct is clearly unethical and made a punishable offense under the Code of Ethics for State Employees. 4
It would be a violation under the laws of other states whose statutes make it an offense for a government employee or elected official '(to) be interested directly or indirectly in any contract.' 5 Unfortunately, this Court cannot construe the statute so as to omit the words 'in the profits.' The general rule, according to 2A Sutherland, Statutory Construction (4th ed.), § 46.06, p. 63, is:
'A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error.'
It is well established that:
'It is the duty of the court to give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.' Inhabitants of Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 395, 27 L.Ed. 431, 433 (1883).
Melia v. Employment Security Commission, 346 Mich. 544, 562, 78 N.W.2d 273, 275 (1956).
In our opinion the Legislature clearly expressed its intent to make it an offense to receive a money grant or kickback or share in the profit of the contractor or supplier. Clearly, the phrase was expressly used to prohibit a drain commissioner receiving stock or having an interest in the company or business concern supplying the tile or performing the excavation. None of these obviously prohibited acts are involved in the instant case. The question therefore is whether either the added transportation costs resulting from the delivery of fill material to the M--59 project as found by the district court, or the fill material itself as found by the circuit court, are an 'interest in the profits' within the meaning of the statute. We cannot answer this question with the judicial certainty required in a criminal procedure.
Legislative records are extinct. We do know that when interpreting a criminal statute we must accept its clear wording. People v. Jack Dykstra Ford, Inc., 52 Mich.App. 337, 217 N.W.2d 99 (1974). The clear wording covers the kickback-type or hidden partnership situation rather than an increase in the cost of hauling excavation.
However, assuming Arguendo that the statute is broad enough to apply to the situation in the present case, it still is necessary that the offense charged be proved beyond a reasonable doubt.
'The question is whether the total evidence, including reasonable inferences, when put together, is sufficient to warrant the trier of fact to conclude that the defendant is guilty beyond a reasonable doubt.' People v. Brown, 42 Mich.App. 608, 615, 202 N.W.2d 493, 497 (1972)
'It is a fundamental principle of our system of justice that an accused's guilt must be proved beyond a reasonable doubt to sustain a conviction.' People v. Hubbard, 387 Mich. 294, 299, 196 N.W.2d 768, 770 (1972).
Application of these principles leads this Court to conclude that the evidence is insufficient to support the district court's findings #9 and #10. The leitmotif of the prosecution's case was that the cost of transporting fill material to the M--59 property affected the profits of the Brewer Drain project contractor. Even the circuit court concluded that this theory had not been proved, and substituted therefor an independent finding of fact that the excavated concrete and dirt was itself a profit to the contractor. We reject this substitute theory. It is contrary to a record replete with evidence that the fill material was a $40,000 to $45,000 liability rather than an asset. Weissman Contracting Company was required to spend money to haul the material away and did not consider it anything of value. Even if the substituted theory were record-supported, it would not be grounds for affirmance.
'It is not the function of an appellate court to decide disputed questions of fact in the first instance and then choose between affirmance or reversal by testing its factual conclusion against that which the trial court Might have or, if the trial judge's reasoning at the time of judgment were identical with that of the appellate court at the time of review, Must have reached for it to issue the judgment it did.' (Emphasis in original.) Nicpon v. Nicpon, 9 Mich.App. 373, 378, 157 N.W.2d 464, 467 (1968).
Wilson v. United States, 250 F.2d 312, 325 (CA 9, 1957).
The district court's findings #1 through #8 are adequately supported by the record. Findings #9 and #10--the heart of the prosecution's case--are, at best, inconclusive. True, the record...
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