State v. Dunn

• Decision Date: 14 March 1905
• Citation: 102 N.W. 935,125 Wis. 181
• Parties: STATE v. DUNN.
• Court: Wisconsin Supreme Court

125 Wis. 181

102 N.W. 935

STATE

v.DUNN.

Supreme Court of Wisconsin.

March 14, 1905.

Appeal from Municipal Court of Milwaukee County; A. J. Vinje, Judge.

Michael Dunn was convicted of accepting money for the purpose of influencing his official action as building inspector of the city of Milwaukee, and he brings error. Affirmed.

Plaintiff in error was convicted upon an indictment found by a grand jury for Milwaukee county, charging him with having violated the provisions of section 4475, Rev. St. 1898. After verdict he filed an application for a new trial under section 4719, Rev. St. 1898, which application was denied by the trial court, whereupon he prosecuted a writ of error out of this court for a review of the order denying the application for a new trial, and for a stay of proceedings and admission to bail during the pendency of the case in this court.

The plaintiff in error, while acting as building inspector for the city of Milwaukee, is charged with the offense of having accepted the sum of $1,500 from the Pabst Brewing Company, under an agreement with the agent and representative of the brewing company to the effect that this sum so paid him by the brewing company, and so accepted by the plaintiff in error, was for the corrupt purpose of influencing him in his official opinion, judgment, or action as building inspector, in passing on an application to grant the brewing company a permit to erect a building within the city of Milwaukee. It is without dispute that plaintiff in error was the duly appointed and qualified building inspector of the city of Milwaukee at the time of the alleged unlawful transactions, and that, as such official, it was his duty to pass upon applications for the erection of buildings within the city. The evidence produced and submitted to the jury tended to show that the brewing company in the early part of November, 1900, through its agent and architect, one F. Charles Peter, submitted to the inspector of buildings plans and specifications for a bottling house which it contemplated building on its real estate in the city of Milwaukee, to be used in conducting the brewing business; that, when such plans and specifications were submitted for inspection at the office of the inspector of buildings, for the purpose of securing a permit for the erection of this bottling house, Mr. Peter was informed that no permit could be granted for the construction of the building as planned and specified, for the reason that the floor areas undivided by brick walls exceeded the areas allowed between and within walls by the building regulations of the city. Mr. Peter communicated the fact of his failure to obtain a permit to construct the building as planned and specified to his principals, the officers of the brewing company. It was not shown that plaintiff in error personally communicated with Mr. Peter at this time. The evidence also tends to show that subsequently, and before November 13th, plaintiff in error had an interview with Gustav G. Pabst, the vice president of the company, wherein he informed Mr. Pabst that the plans were not in accordance with the building laws of the city--that the floor space not inclosed by walls was larger than the ordinances permitted--and he at that time informed Mr. Pabst that the permit was refused on that ground; that the brewing company on the 13th of November caused an ordinance to be introduced in the common council authorizing a permit to issue as applied for; that while such ordinance was pending, and before November 15th, Mr. Pabst, finding it inconvenient to await the action of the council, had another interview with plaintiff in error, and was informed that arbitration proceedings might be undertaken, but that no permit could issue until the ordinance had been withdrawn from the council; that Mr. Pabst was then informed by plaintiff in error that it would require the sum of $1,500 to secure proper action on, and disposition of, the ordinance, so that a permit might be granted, or to get a permit; and that upon consideration of this matter it was agreed that an arbitration was to be applied for by Mr. Pabst, and that if a permit was issued the amount would be paid. On November 15th, Mr. Pabst filed a written request for arbitration in the office of the inspector of buildings, accompanied by a sum of money sufficient to pay the expense of the arbitration, and designating one of the arbitrators. Plaintiff in error thereupon designated another arbitrator, and the two so named selected a third person. These three met on the 16th of November at the brewing company's place of business, and, after inspecting the plans and specifications, they made and filed an award in the building inspector's office to the effect that the proposed building, as shown by the original plans and specifications submitted to the inspector of buildings, complied with the building laws, and that a permit should be granted. After the filing of this report, defendant in error directed that a permit issue, and it was so issued November 17th. The $1,500 check was given by the brewing company and received by the plaintiff in error on the same day. The plaintiff in error testified that it was understood between himself and the representative of the brewing company that none of the money was for his own use or benefit, but that it was to be paid to other persons for the sole purpose of securing the withdrawal of the ordinance from the common council, and that it was so paid over by him to one George Porth, now deceased, and that none of the money was retained by him. The ordinances in force at the time of these transactions relating to the construction and maintenance of buildings in the city of Milwaukee provided for written applications to the inspector of buildings for permits to construct buildings, and prescribed the conditions upon which permits were to be granted, and upon what grounds they were to be refused. They also provided that persons might appeal from the inspector's determination to arbitration “in cases where discretionary power to estimate the damages to buildings and their roofs is given to the inspector, as also in questions relating to the security or insecurity of buildings,” and in all cases where discretionary powers are given by the ordinance to the inspector. It is further provided that “the person wishing to make such appeal shall do so within forty-eight hours after written notice of the decision or order of the inspector has been given. An appeal made later than forty-eight hours after serving of the notice of the inspector shall not entitle the applicant to arbitration.” They also prescribed the limit of floor areas between walls in the different classes of buildings, and the kind of walls required for inclosing and partition walls, and specifications as to openings therein. The case was submitted to the jury upon the evidence and under instructions, who thereupon returned a verdict of guilty of the charge preferred in the indictment. This is an appeal from the order denying a new trial.

Dodge, J., dissenting.Fiebing & Killilea and W. F. Adams, for plaintiff in error.

L. M. Sturdevant, Atty. Gen., F. E. McGovern, Dist. Atty., and W. D. Corrigan, Asst. Atty. Gen., for the State.

SIEBECKER, J. (after stating the facts).

It is urged that the court erred in denying the motion for a new trial for want of sufficient evidence to warrant a conviction of the offense charged in the indictment. This contention is based upon the ground (1) that there was no application pending before plaintiff in error, as inspector of buildings, for a permit to construct the building in question at the time it is claimed the offense was committed, or which might come before him, in his official capacity, for his vote, opinion, judgment, or action thereon; and (2) that the check referred to was not received by him from Mr. Pabst under an agreement or understanding between them that his official opinion, judgment, or action was to be thereby corruptly influenced.

As to the first claim, it is asserted that the evidence shows that the accused could exercise no official authority in respect to the issuance of the building permit at the time it is alleged the offense was committed, because the evidence establishes that the application for such permit had theretofore been passed upon by him and denied, and was then pending before arbitrators, which action had removed it beyond his jurisdiction, and deprived him of all power in the matter. This leads...