State v. Kuehnle

• Decision Date: 24 November 1913
• Citation: 85 N.J.L. 220,88 A. 1085
• Parties: STATE v. KUEHNLE.
• Court: New Jersey Supreme Court

88 A. 1085

85 N.J.L. 220

STATE

v. KUEHNLE.

Court of Errors and Appeals of New Jersey.

Nov. 24, 1913.

(Syllabus by the Court.)

Error to Supreme Court.

Louis Kuehnle, a public officer, was convicted (85 Atl. 1014) of being concerned in a public contract in violation of Crimes Act (2 Comp. St. 1910, p. 1755) § 32, and brings error. Affirmed.

Gilbert Collins, of Jersey City, and Bourgeois & Coulomb, of Atlantic City, for plaintiff in error.

Edmund Wilson, Atty. Gen., for the State.

SWAYZE, J. We approve of the opinion of the Supreme Court; but, in view of the vigor and earnestness with which counsel for the plaintiff in error pressed upon us points not dealt with by that court, we think it well to add some suggestions.

The right to order a special term of the Atlantic oyer has been sufficiently vindicated by the Supreme Court in State v. McDevit, 87 Atl. 123.

The right in a proper case to award a venire for a grand jury to elisors has been settled by our opinion in State v. Zeller, 83 N. J. Law, 666, 85 Atl. 237. The circumstances under which the venire issued in the present case are, however, different. In the Zeller Case the sheriff had summoned a grand jury, and the prosecutor of the pleas challenged the array upon the ground that a complaint was to be made against the sheriff; an opportunity to be heard was given to the sheriff before the challenge was sustained. In the present case the grand jury which had been sworn at the opening of the term was discharged, and the court immediately upon motion of the Attorney General ordered that a special session of the oyer and terminer be convened. The Attorney General also moved that the sheriff be disqualified, and that the grand jury be selected by two elisors. He stated facts indicating a prima facie case of a criminal violation of law by the sheriff, and offered affidavits in support of the charge. The judge then said that sufficient had been shown to convince him that the sheriff was not impartial; but, as he doubted his power to pass over the coroners and award a venire to elisors, he reserved decision on that point. The affidavits were not made public, and no opportunity for a hearing was given to the sheriff. We think that the difference in procedure in the two cases does not differentiate this case from the Zeller Case in any essential particular. In both cases the judge acted upon facts that gave reasonable ground to believe that a complaint might properly be made before the grand jury against the sheriff. In neither case did he act in an arbitrary way. Whether or not there should be a public hearing, with an opportunity for the sheriff to explain, is a matter that must rest in the sound judicial discretion of the judge. He is not to try the case, and his only function for the time being is to ascertain whether or not the sheriff is to be trusted to draw an impartial grand jury as his oath of office requires. Cases may arise, and doubtless this was one, where a premature disclosure of the charge to be made might thwart the very purpose of the procedure. The practice of sealing affidavits in such a case is one not to be encouraged, as it may lead to abuses. It must always be open to the appellate courts to determine their sufficiency. Here the affidavits show clearly the necessity of the action by the judge, and his discretion was properly exercised.

The indictment contains two counts. One charges that Kuehnle was a member of the board of water commissioners of Atlantic City, which directly managed and controlled the city waterworks, and was authorized by law to purchase plant, materials, and supplies therefor, and to expend for that purpose monies appropriated by the city council; that the commissioners entered into a contract with Lockwood for a water main known as the Timber water main; that Lockwood was an employé of the United Paving Company, and that the contract was in fact the contract of the company; that Lockwood was named as a party to conceal the interest of the company, as the defendant knew; that the defendant was a stockholder, director, and officer of the United Paving Company, and as such was unlawfully and corruptly interested and directly concerned in the contract. The second count adds an averment that after the execution of the contract the United Paving Company entered upon the performance thereof, and from time to time received the compensation therefor.

The indictment attempts to charge a violation of section 32 of the Crimes Act (2 Comp. St 1910, p. 1755). The first count, which is the only one of importance in the pending case, charges a violation of the first part of this section, which forbids the public officers therein mentioned from being directly or indirectly concerned in any agreement or contract for any improvement to be contracted or made for the public use or at the public expense. The language of the statute cannot be taken literally. It is perfectly proper and in fact commendable for all citizens and most of all for the officers charged therewith to be concerned in contracts for public improvements; it would be absurd to suppose that the Legislature meant to prohibit any concern direct or indirect on the part of those whose public duties required them to be concerned. We must in this as in an cases give a reasonable construction to the language, or, as is now quite commonly said, apply the rule of reason. Looking at the act in the light of reason, we think it manifest that what the statute meant to prohibit was a selfish concern on the part of the officer adverse to the public, and this concern would, as things go, generally, perhaps always, be a pecuniary concern. But even a pecuniary or selfish concern would not always suffice. Every taxpayer and every owner of real estate has a selfish and pecuniary concern in the cost of every public improvement and particularly in cases where his property may be liable to assessments for special benefits. Yet it can hardly be that this concern disqualifies every taxpayer and property owner from sitting on municipal boards. There was indeed a time when the law was so strict that a taxpayer was disqualified to sit as a juror in a suit by or against his county or municipality. The absurd rigidity of that rule was abolished by a supplement to "An act the better to promote the impartial administration of justice" in 1849, 26 years before the act of 1875, which is the basis of section 32 of the present Crimes Act. The supplement probably tended to secure the object declared in its title. We cannot believe that the Legislature meant in 1875 to apply a more rigid rule to members of public boards than had been since 1849 applicable to judges and jurors. Reason, we think, requires that the concern should not merely be selfish and pecuniary but corrupt. So, indeed, the draughtsman of the indictment thought, for he averred a corrupt interest and concern, and so the learned trial judge charged. The importance of the point for our present purpose lies in the fact that the indictment avers a direct concern in the contract by Kuehnle, and it is conceded that he had no direct concern; that at most his concern was the indirect concern of a stockholder in the United Paving Company. If the averment of the indictment that he had a direct concern is a material averment, the state utterly failed to prove its case. If, however, the averment is not material, and may be rejected as surplusage, the indictment may still be good, if, without that averment, facts are set forth sufficient if proved to warrant conviction. We think the averment that Kuehnle's concern was direct is immaterial. The statute makes the offense a crime if he is directly or indirectly concerned, which is only a longer way of saying, if he is concerned at all. It can make no difference whether the concern is direct or indirect, and the adjectives might well be omitted. There are not two distinct crimes, one based on direct, the other on indirect concern. The crime consists in the corrupt interest whether the concern is direct or Indirect Whether the concern is direct or indirect is a mere conclusion of the pleader from the facts set forth, and may be rejected (1 Chitty, Criminal Law, 232) just as other surplusage has been repeatedly rejected where enough remained of the indictment to show a crime. State v. Kern, 51 N. J. Law, 259, 265, at bottom, 17 Atl. 114; State v. Brand, 76 N. J. Law, 267, 69 Atl. 1092, affirmed 77 N. J. Law, 486, 72 Atl. 131; State v. Clement, 80 N. J. Law, 669, 77 Atl. 1067. The rule was not questioned in State v. Flynn, 76 N. J. Law, 473, 72 Atl. 296; in that case the trouble was that the indictment did "no more than to accuse him [the defendant] of one or the other of several matters, one of which is no offense against the law." The material averment in this case is the averment of a corrupt interest We do not overlook the rule of Halsted v. State, 41 N. J. Law, 552, 32 Am. Rep. 247. It was held in that case that, with respect to statutory offenses, the maxim that crime proceeds only from a criminal mind does not universally apply. But the great Chief Justice who spoke for this court in that case was too acute and accurate to fail to perceive and call attention to the fact that the real question is one of statutory construction. The Legislature may, if it will, make an act criminal without regard to the criminal intent; the question is, Has it done so? The construction of the statute in that case turned on the fact that the duty to be performed was a simple one, not subject to very great difficulties in its performance. In the present case the statute, if construed literally and as not requiring a corrupt motive, would lead to results that surely could not have been intended. We think, therefore, that the material averment is the averment that the defendant was corruptly interested and concerned, and that the averment of a direct concern may be disregarded, since the facts specifically set out show...