People v. Darby

• Citation: 114 Cal.App.2d 412,250 P.2d 743
• Decision Date: 26 November 1952
• Docket Number: Cr. 4839
• Court: California Court of Appeals
• Parties: PEOPLE v. DARBY.

Page 743

250 P.2d 743

114 Cal.App.2d 412

PEOPLE v. DARBY.

Cr. 4839.

District Court of Appeal, Second District, Division 2, California.

Nov. 26, 1952.

Hearing Denied Dec. 23, 1952.

Bates Booth and Joseph Scott, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Mark Brandler, Deputy Dist. Atty., Los Angeles, for respondent.

MOORE, Presiding Justice.

While he was a member of the Los Angeles Board of Education appellant was indicted on three counts, each accusing him of having an unlawful interest in a contract executed by the board. Count I alleged a contract between the board and the Jack & Jill Ice Cream Company, a partnership herein referred to as Jack & Jill, and that it was contrary to the provisions of section 1011 of the Education Code and section 1090 of the Government Code. He was convicted on count I but acquitted on counts II and III which alleged kindred charges with respect to certain printing contracts. Proceedings were suspended and appellant was granted probation on condition that he pay a fine of $1000. He appealed from the judgment, the order denying his motion for a new trial, the intermediate orders made by the judge, the order denying appellant's motion in arrest of judgment, and the verdict. Since the several orders and the verdict are nonappealable, the appeals therefrom will be dismissed and the various attacks upon the verdict will be considered along with the judgment and the motion for a new trial. People v. D'Elia, 73 Cal.App.2d 764, 766, 167 P.2d 253; Penal Code, § 1237.

The Background

Appellant's appointment to membership on the Los Angeles Board of Education was on May 27, 1947. He was president of the board for the school year July 1, 1948 to June 30, 1949. He was elected to succeed himself for the four-year term commencing July 1, 1951. However, he had not arrived at a general election before the commencement of the series of events recited herein.

In 1949 appellant was owner of a vacant store on Third street in Los Angeles. In June he telephoned the office of David Bresler, member of the firm of Jack & Jill. When Bresler returned the call, appellant informed him of his vacant store and commended it as a good location for commencing an ice cream business. Bresler sent Mr. Olin, general manager of Jack & Jill to inspect the store. Late in June, 1949, Mr. Olin introduced Bresler to appellant at the board's office as a partner in Jack & Jill. Appellant followed the introduction with an inquiry whether Bresler would be interested in bidding on school ice cream business. Indeed, he would, if there was a chance. Appellant could help him get it if Jack & Jill were the low bidder. Appellant thereupon injected into the discussion the leasing of his vacant store and quoted a rental of $300 monthly and suggested his earnest desire to procure a good tenant.

Arrangements were completed for appellant to draw the lease on the Third street property by inserting as lessee the name of one Wass, an employee of Jack & Jill. Bresler would send appellant a check for $600 dated June 24, 1949, in payment of the first and last months of the lease term. On receipt of the lease signed by appellant, Bresler had Wass to execute it. Appellant received the executed lease and the $600 check. The $300 was received monthly by appellant until February, 1950. The premises were used as a retail dispensary of the products of Jack & Jill whose name was on the outside.

On July 1, 1949, appellant was by president Elliott duly appointed chairman of the Insurance Committee. He promptly called Elliott's attention to his former request to be appointed chairman of the Purchasing and Distribution Committee, herein referred to as the Purchasing Committee. Thereupon the president withdrew his appointment of Earle D. Baker from the coveted chairmanship, appointed him to the Insurance Committee, and named appellant as chairman of the Purchasing Committee. Among the duties of the latter committee is that of receiving the tabulation sheet containing a summary of ice cream bids, the names of bidders and other items on which they have bid and the prices of the bidders. On receipt of such summaries, the purchasing committee forwards its recommendations to the Board which accordingly makes the awards of contracts. The purchasing committee convened on August 4, 1949, to consider the bids on ice cream contracts. They found Jack & Jill had made the low bid and that it had already been agreed to by all other bidders. By reason of the committee's inability to find one bidder alone capable of supplying the total output required, the committee decided to allocate the business among all the bidders. There followed a discussion among the members as to whether Jack & Jill, a newcomer to Los Angeles and relatively unknown, should be given more than a token award. Appellant took the position that since Jack & Jill had put in the low bid which had been met by all the other bidders, they should have more than a token amount and suggested they be given twenty per cent, or about $90,000 a year. Appellant's proposal was adopted by the purchasing committee whereupon he signed the committee's report dated August 22, 1949, recommending the purchase of ice cream from various bidders including Jack & Jill for the year following September 1, 1949. Thus Jack & Jill received twenty per cent of the gross ice cream sales to the board for the year which paid them $68,250.18.

While some evidence was adduced that the fair monthly rental value of the Third street store in July, 1949, was $300, other proof showed it did not exceed one-half that sum. An expert witness testified that it was worth less than $300 per month. While appellant received checks for $300 each month in payment of his lease, Blagg and Bresler, the lessees of Jack & Jill, paid the latter only $125 per month for a portion of the lease term, thereby requiring Jack & Jill to absorb the differential. In February, 1950, appellant offered to lease the store to Blagg at $125 a month. Another witness testified that the successor of Blagg and Bresler obtained a lease at $250 rental monthly, and that appellant consented to reduce it to $175.

Appellant did not testify.

However, on this appeal, he submits that the proof is insufficient and the law is not adequate to warrant appellant's conviction for violating section 1011 of the Education Code and sections 1090 and 1097 of the Government Code in that he was 'interested as a member of the Board of Education * * * in a contract for the purchase of ice cream products made by the said Board * * *.'

The Indictment and the Statutes

Appellant was accused by indictment of 'willfully and knowingly being interested as a member of the Board of Education in a contract for the purchase of ice cream products made by the said Board' with Jack and Jill, all in violation of sections 1090 and 1097 of the Government Code ¹ and section 1011 of the Education Code. ²

Appellant contends that the Education Code pre-empts the field of interests prohibited to school boards; that school-board members are not subject to the parallel article of the Government Code; that each unit of legislation is complete within itself and does not overlap; that if the Legislature had intended the Government Code to apply to school boards, the provisions of the Education Code would be meaningless; that the specific controls the general. Appellant contends that the framing of the accusation against him under section 1090, Government Code, is a distortion of that statute; that inasmuch as the Legislature has adopted an Education Code and included in it section 1011 specially designed to inhibit a school-board member from having an interest in a contract made by the board--having the prohibited interest may be illegal, but not a crime. The feature of section 1014 which appeals with emphasis to appellant is that it makes the act of which he stands accused a misdemeanor. Because of this clear provision applicable to school trustees, appellant contends that the court below erroneously instructed the jury that a violation of section 1011, Education Code, is a felony under section 1097 of the Government Code, and that because the lawmaker 'set out the consequences of a disobedience to his will, no other consequences can be logically and fairly considered as coming within the scope of his intention.' Bird v. Dennison, 7 Cal. 297, 307. Appellant concludes from the quoted decision and statutory provisions that the only remedy applicable to a school trustee who votes on a contract in which he has an interest is civil, sec. 1013, and that since no punishment is annexed, the interest prohibited by section 1011 may be illegal, but it can be no crime because a penalty is necessary to constitute a crime. Penal Code, § 15. From the conclusion thus derived appellant generalizes that no felony conviction can be had for the violation of a section of the Education Code for which no penalty is provided.

It would be pleasing to decipher the codes as appellant's counsel has done. At first blush it might appear that, after the Legislature has solemnly enacted statutes for the governance of those who conduct the affairs of a school district and set them up in buckram as 'Education Code,' the law-enforcing agencies would forego consulting the Government Code, the Penal Code or any other code and apply only the remedies provided in the Education Code. But to reason so is to indulge in interpreting the codes with a squinted view. The laws have been codified for the convenience of the people. All of them combined speak for the sovereign power and all constitute but a single statute. In re Porterfield, 28 Cal.2d 91, 100, 168 P.2d 706, 167 A.L.R. 675. There is no rule of statutory construction that requires the courts so to construe a statute as to render it invalid. The reverse is more nearly the rule.

It is true that section 1097...