State v. Dougherty

• Decision Date: 12 January 1915
• Parties: STATE v. DOUGHERTY et al.
• Court: New Jersey Supreme Court

93 A. 98

86 N.J.L. 525

STATE

v. DOUGHERTY et al.

Supreme Court of New Jersey.

Jan. 12, 1915.

Error to Court of Quarter Sessions, Atlantic County.

Harry Dougherty and another were convicted of crime, and they bring error. Affirmed.

Argued November term, 1913, before GUMMERE, C. J., and PARKER and KALISCH, JJ.

Bolte & Sooy, of Atlantic City, and Robert H. McCarter, of Newark, for plaintiffs in error. Edmund Wilson, Atty. Gen., for the State.

KALISCH, J. The plaintiffs in error, who were councilmen of the city of Atlantic City, were convicted in the court of oyer and terminer for Atlantic county, upon an indictment for conspiracy. The indictment contained two counts, but we are only concerned with the first, because the state elected to stand upon it alone. This count charges the plaintiffs in error, in conjunction with others, also councilmen of Atlantic City, with having unlawfully and corruptly combined, conspired, and confederated together to pervert the due administration of the laws relating to the municipal government of Atlantic City, by corruptly passing and securing the passage of a certain ordinance by the city council of Atlantic City, entitled "An ordinance providing for and authorizing the erecting of a concrete construction to replace the present boardwalk structure heretofore erected along the inner line of the Beach or Ocean Front Park, in Atlantic City," for the passage of which by virtue of their corrupt agreement they, constituting a majority of the members of the city council of Atlantic City, were to receive a bribe of $500 each from one J. K. Harris, a person interested in the passage of the ordinance, and received such bribes. Some of the defendants having pleaded guilty, the case proceeded to trial against the plaintiffs in error and George W. Carmany, Harry J. Mulock, and John Donnelly. A verdict of not guilty was directed for Carmany and Mulock, Donnelly was acquitted, and the plaintiffs in error were convicted. The validity of their conviction and of the judgment pronounced thereon is challenged by the plaintiffs in error, on bills of exceptions and also under the 136th section of the Criminal Procedure Act.

After the state rested its case, counsel of plaintiffs in error moved for the direction of a verdict of not guilty, which was denied. The defense proceeded with the case, and Dougherty became a witness in his own behalf, while Murtland put in no defense. At the close of the entire case, counsel of plaintiffs in error renewed his motion for a direction of a verdict of not guilty, which was refused, and it is this refusal which is made the basis of the first four assignments of errors.

It is contended by counsel of plaintiffs in error that the motion for a direction of an acquittal should have prevailed because the plaintiffs in error were indicted for a conspiracy to pervert the administration of the laws under the thirty-seventh section of the Crimes Act, and that, even assuming that they voted corruptly for the ordinance in question, they were not guilty of a conspiracy to obstruct or pervert the administration of the law.

The argument made to support this contention is that the Legislature meant, in the use of the phrase "or to commit any act for the perversion or obstruction of justice or the due administration of the laws," some interference with the due and orderly execution or administration of the laws of the state, and by these "laws" is intended statutory laws. So that, when the defendants voted for the passage of the ordinance, they were legislating rather than administering, and were passing a new municipal ordinance, rather than doing anything to pervert or obstruct any of the "laws." And pursuing this line of reasoning, it is argued that therefore a corrupt agreement to vote for such an ordinance is not perverting the administration of any law.

This argument is fallacious in two essential respects: Firstly, because it rests upon the unwarrantable assumption that the defendants by voting for the passage of the ordinance were legislating and not administering the law, whereas they were in fact doing both; secondly, because the proposition assumes that the Legislature intended by the term "administration of the laws" statutory laws, exclusively.

If we stop to consider for a moment that the laws under which our state and municipal affairs are governed flow from the organic law of the state—the Constitution plus so much of the statute law and common law not repugnant thereto and unaltered or unrepealed at and from the time of the adoption of the Constitution—it at once becomes apparent that the argument advanced by counsel of plaintiffs in error is untenable.

By the Constitution the power to legislate for the government of cities and other political divisions is conferred upon the Legislature, which political bodies in turn derive from the Legislature through the enactment of statutes the power to pass ordinances governing and regulating their internal affairs.

To administer the organic law of the state, the Legislature may enact statutes. The enactment of a law was never intended to be a purely ministerial act. Its enactment calls for the exercise of the sound discretion and judgment of the legislator in various respects, such as whether the law is within constitutional authority, whether it is needful to the community, whether it is beneficial or not, etc. In fact, it demands the exercise of a quasi judicial function on part of the legislator. Hence, when the Legislature enacts a law, it is administering the organic law of the state, as well as legislating in accordance therewith.

Therefore it cannot reasonably be said that a corrupt combination between members of a legislative body to enact a law only upon the payment of a bribe is not a perversion of the administration of law. And further it follows, as a logical sequence from what has been said, that a corrupt combination between members of a legislative body to refuse to enact a law unless a bribe be paid would constitute a conspiracy to obstruct the due administration of the law regardless of the fact, whether such enactment was or was not beneficial to the community. But even if it be conceded that that part of the proposition, of counsel of plaintiffs in error, which maintains that by the term "laws" statutory laws is intended, is sound, we cannot perceive how, in the situation presented, it can be of any avail to the plaintiffs in error.

The specific matter charged in the indictment is in fact a conspiracy to pervert the due administration of the statute law of the state. In 1902, the Legislature passed an act for the government of cities as should adopt its provisions. Atlantic City did so, and this statute then became the governing law of that city. Its administration, as a matter of course, is intrusted to the mayor, council, and other officers of that city. In so far as it is administered by the council, it is done by the passage of ordinances and the adoption of resolutions, and its due administration requires that each member of the council shall perform his official duties with a single purpose to the welfare of the people of that city, of whom he is the trusted representative. When the council passed an ordinance, not for the purpose of advancing or conserving the interests of Atlantic City, in that regard, but corruptly, for the purpose of financially benefiting its members, or some of them, it does not duly (i. e., honestly and for the purpose for which the powers vested in that body were conferred) administer the statute of 1902; and a conspiracy to induce that body to pass an ordinance for such ulterior purpose, without regard to the public interests, is a conspiracy to obstruct or pervert the due administration of that statute.

We are not content, however, to accept the narrow construction of the act contended for by counsel of plaintiffs in error. To adopt the view urged upon us would lead to most pernicious consequences in every department of government, by giving to corrupt legislators and those intrusted with administering the law immunity from punishment for their corrupt acts, under this provision of the conspiracy act, unless the act done was in violation of some statute law.

In Moschell v. State, 53 N. J. Law, on page 501, 22 Atl. on page 51, Magie, J., said:

"To administer laws is either to superintend their execution or to determine their application. Without laying stress upon the judicial or quasi judicial function of election officers, I think it plain that their acts under those laws are acts of administration in both senses. Whatever perverts or turns from its true end and purpose the administration of those laws is therefore within the provisions of this section."

Counsel of plaintiffs in error refer to this case as supporting their interpretation of the meaning to be given to the statutory phrase "or to commit any act for the perversion or obstruction of justice or the due administration of the laws." But this is obviously not so. Justice Magie had evidently in mind the facts of the case before him, and they related to a conspiracy to pervert and obstruct the administration of the election laws, by doing certain acts, with intent to unlawfully influence the result of a certain election. And to this situation the language used by the learned justice was pertinent and apt. He was dealing with the election statutes, and it is quite evident from the language used that it neither in terms nor purport limits all possible perversion of law and the administration thereof to statute law.

This view is cogently supported by State v. Ellis, 33 N. J. Law, 102, 97 Am. Dec. 707, which was a case where an attempt was made to bribe a member of the common council of Hudson City, and the court declared the legal rule to be as follows:

"Any attempt to influence an officer in his official conduct, whether in the executive, legislative, or judicial department of the government,...