State v. Ruffu

• Decision Date: 19 May 1930
• Docket Number: Nos. 231-244.,s. 231-244.
• Parties: STATE v. RUFFU.
• Court: New Jersey Supreme Court

150 A. 249

STATE

v. RUFFU.

Nos. 231-244.

Supreme Court of New Jersey.

May 19, 1930.

Certiorari proceeding by Anthony M. Ruffu, Jr., against the State.

Application denied.

Argued May term, 1930, before PARKER, CAMPBELL, and BODINE, JJ.

Babcock & Champion, of Atlantic City, and Merritt Lane, of Newark, for prosecutor.

Louis A. Repetto, of Atlantic City, for the State.

PER CURIAM.

Anthony M. Ruffu, Jr., mayor of Atlantic City, was indicted in fourteen separate indictments charged with violations of section 32 of the Crimes Act, as amended P. L. 1907, p. 292 (2 Comp. St. 1910, p. 1755, § 32). The act is as follows, and the italics ours: "32. Any member of any board of chosen freeholders or any township committee, or any board of education in any school district, or any board of aldermen or common council in any city, or any board of commissioners of any county, township, city, town or borough in this state, who shall be directly or indirectly concerned in any agreement or contract for the construction of any bridge or building of any kind whatsoever, or any improvement whatever to be constructed or made for the public use or at the public expense, or shall be a party to any contract or agreement, either as principal or surety, between the county, township, city, town, borough or school district, as the case may be, and any other party, or who shall be directly or indirectly interested in furnishing any goods, chattels, supplies or property of any kind whatsoever to or for the county, township, city, town, borough or school district, the contract or agreement for which is made or the expense or consideration of which is paid by the board, council or committee of which such member is a part, shall be guilty of a misdemeanor."

The indictments fall into three groups. In the first are ten indictments containing three counts, each charging that Ruffu, while a member of the city commission and mayor of Atlantic City, did unlawfully, knowingly, wickedly, maliciously, and corruptly,, with evil intent for his own use and gain, furnish property to and for the benefit of Atlantic City in the form of a certain policy of fire insurance described at length, and that he shared in the brokerage commission paid therefor. In the second count, the policy is referred to as a supply furnished to the city. In the third count he is charged with being a party to agreements and contracts providing for the writing of certain specific insurance policies for the city. The indictments contain many allegations descriptive of the offense intended to be charged and many words and phrases calculated to bring the offenses alleged within the provisions of the Crimes Act and hence to the defendant.

The second and third groups charge like offenses. The principal point of variation is the language in which the mayor's interest in procuring the insurance policies called property and supplies is alleged.

It is argued that the statute must be strictly construed, and that a policy of insurance is a chose in action, and neither property, a supply, or a contract. Mr. Justice Bergen, speaking for this court in State v. Johnson, 82 N. J. Law, 330, 332, 81 A. 657, 658, said: "It does not appear to us that it is so manifest that no judgment can be rendered on this indictment that it ought to be quashed, and we prefer to follow the rule laid down in Proctor v. State, 55 N. J. Law, 472, 25 A. 804, that the discretion to quash an indictment on motion will not be exercised unless upon the clearest and plainest ground, but the defendant will be left to a demurrer, motion in arrest of judgment, or writ of error."

The other authorities in this state in support of the same proposition were exhaustively collected by Mr. Justice Parker in State v. Riggs, 92 N. J. Law, 575, 106 A. 467.

Afterwards the late Mr. Justice Kalisch said, in State v. Bolitho, 103 N. J. Law, 246, at page 253, 136 A. 164, 169, affirmed 104 N. J. Law, 446, 146 A. 927, the following: "An application to a Supreme Court Justice for a writ of certiorari to remove an indictment into the Supreme Court for the purpose of moving before that tribunal to quash is addressed to the discretion of the justice. If he refuses to exercise his discretion to allow the writ, the application may be made to the Supreme Court en banc. But the refusal of either furnishes no proper basis for an assignment of error, under proceedings by strict writ of error nor for a specification of cause for reversal in proceedings under the 136th section of the Criminal Procedure Act [2 Comp. St. 1910, p. 1863, § 136]. It will not be out of place to state here that for more than 50 years it was the fixed practice to disallow an application for a writ of certiorari to remove an indictment into the Supreme Court for the purpose of moving there to quash it, unless the prosecutor of the pleas consented to its removal, or unless it appeared upon the* face of the indictment that it was clearly defective in substance and a motion to quash had been made in the court of the first instance, which motion was denied."

The language of section 32 of the Crimes Act (2 Comp. St. 1910, p. 1755, § 32) is very broad, and was doubtless intended to be all-inclusive. The distinction between prohibiting the furnishing of materials and supplies of any kind whatsoever and the furnishing of an insurance policy is not too obvious. A policy of insurance is usually regarded as a document containing the terms of contract between an insurance company and the insured. Of course, every lawyer is aware of the fact that in the strict legal sense the policy gives rise to certain rights in action, but as a physical document it has also an existence under the law. It may very well be that it falls within the legislative classification of property and supplies which a city commissioner may not be directly or indirectly interested in furnishing to the city of which he is an officer. We do not feel that the indictment is so clearly and so plainly defective that this court can grant the motion.

We are mindful that it was said in Hammonton v. Elvins, 101 N. J. Law, 38, 127 A. 241, 242, that "the purpose of competitive bidding is to prevent dishonesty, chicanery and fraud. It was never intended that such a course of procedure would throttle the exercise of an honest judgment within prescribed limits." However, the purpose in prohibiting a municipal officer from dealing with his municipality was not only to prevent dishonesty, chicanery, and fraud, but also to prevent a person holding an office of trust from dealing with the city whose affairs were intrusted to his care and guidance.

The grand jury finding the indictments under consideration was sworn into office on January 14, 1930. Nearly two months thereafter a challenge was interposed against four members of the grand jury on the ground of bias and prejudice. The challenge was overruled as not being within time. After the indictments were found on March 31, 1930, three other members of the grand jury were challenged on the ground that they were public officers. These challenges were likewise overruled for the same reason. It appears that, before the indictments were found, the newspapers of the locality contained various accounts of the mayor's activities in obtaining insurance upon city property in companies for which he acted as broker or in which he was interested either as an officer, stockholder, or director. On March 11, 1930, one of the justices of this court charged the grand jury with respect to the matter, but prior to his charge the first set of challenges was interposed.

Chancellor Magie said, in State v. Hoffman, 71 N. J. Law, 285, 58 A. 1012, 1013:

"The rule of the common law which requires grand jurors to be 'probi et legales homlni' (2 Hale, P. C. 154) was early supplanted in this state by legislative provisions fixing the qualifications of grand jurors. By the provisions of section 2 of the 'act relative to juries and verdicts,' passed November 10, 1797 (Paterson's Laws, p. 259), every grand juror was required to be a citizen of the state, a resident of the county, above 21 and under 65 years of age, and having freehold in lands. Lack of the required qualifications was expressly declared to be good cause of challenge. * * *

"The requirements of a freehold qualification was eliminated with respect to both grand and petit jurors by the 'act to abolish the freehold qualifications,' approved February 28, 1851 (Laws 1851, p. 93). The act of 1846 was repealed by section 76 of the general repealer of the Revision, approved March 27, 1874 (Rev. St. 1874, p. 147). The provisions of section 2 and section 7 of that act were consolidated in section 6 of the 'Act concerning juries,' approved March 27, 1874 (Rev. St. 1874, p. 372), the language of which is as follows:

"'(6) Every person summoned as a grand juror in any court of this state, and every petit juror returned for the trial of any action or suit of a civil or criminal nature, shall be a citizen of this state and resident within the county from which he shall be taken, and above the age of twenty-one and under the age of sixty-five years; and if any person who is not so qualified, shall be summoned as a grand juror or as a juror on the trial of any such action in any of the courts of this state, it shall be good cause of challenge to such juror, who shall be discharged upon such challenge being verified according to law, or on his oath or affirmation in support thereof; provided that no exception to any such juror on account of his citizenship, or age, or any other legal disability, shall be allowed after he is sworn or affirmed.' * * *

"The objection presented by the motion to quash, and grounded on the lack of qualification of one of the grand jurors because he was beyond the age of 65 years, which would have been good by way of challenge, came too late after the juror was sworn, and it was properly overruled by the trial court."

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