State v. Williamson, A--580

• Citation: 148 A.2d 610,54 N.J.Super. 170
• Decision Date: 16 February 1959
• Docket Number: No. A--580,A--580
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Williford T. WILLIAMSON, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

Page 170

54 N.J.Super. 170

148 A.2d 610

The STATE of New Jersey, Plaintiff-Respondent, v. Williford T. WILLIAMSON, Defendant-Appellant.

No. A--580.

Superior Court of New Jersey Appellate Division.

Argued Nov. 10, 1958.

Decided Feb. 16, 1959.

Julius E. Kramer, Hackensack, argued the cause for defendant-appellant (Chandless, Weller & Kramer, Hackensack, attorneys).

William C. Brudnick, Sp. Asst. Prosecutor, River Edge, argued the cause for plaintiff-respondent (Guy W. Calissi, Bergen County Prosecutor, Hackensack, attorney).

Before Judges CONFORD, FREUND and HANEMAN.

The opinion of the court was delivered by

CONFORD, J.A.D.

Defendant is and for some time past has been City Manager of the Borough of Fair Lawn. He was indicted by the grand jury of Bergen County for misconduct in office and was subsequently granted leave to appeal from an order of the Law Division denying his motion to quash the indictment.

The appeal projects for our attention several distinct grounds of assault upon the true bill. Proper consideration of the merits of the appeal requires setting forth the substantive part of the indictment in its entirety. (The interpolations of numbers and letters in brackets are by the court.)

'1. Williford T. Williamson on or about the 11th day of August, 1953 and from thence continuously to and including the 24th day of January, 1956, in the Borough of Fair Lawn, in the County of Bergen aforesaid, and within the jurisdiction of this Court, was, and still is, a public officer, to wit, Municipal Manager of the Borough of Fair Lawn, a municipal corporation of the State of New Jersey in the County of Bergen aforesaid, duly appointed and qualified to and for the said public office.

'2. That at all times hereinabove stated, the said Williford T. Williamson as such Municipal Manager of the Borough of Fair Lawn aforesaid, was charged among other things, with (1) the public duty of using all lawful, proper, reasonable and effective means and diligence in complying with the laws of the State of New Jersey in the awarding of contracts and work and the purchasing of materials for the Borough of Fair Lawn and to refrain from entering into any contract as chief executive official and chief administrative official of the municipality of the Borough of Fair Lawn for the doing of any work and for the furnishing of labor and materials, where the sum to be expended exceeded the sum of $1,000.00 unless there was first public advertisement for bids therefor and an awarding of the contract to the lowest responsible bidder as provided by law (N.J.S. 40:50--1 (N.J.S.A.)), and (2) the duty not to promise to award any contract as chief executive and chief administrative official of the municipality for his department or the Borough of Fair Lawn under an agreement or understanding that he would act in any particular manner with reference to the affairs of the Borough of Fair Lawn, and (3) the duty to render public service to the Borough of Fair Lawn to the best of his ability and uninfluenced by motives adverse to the best interests of said Borough of Fair Lawn, and (4) to refrain from negotiating contracts for the Borough of Fair Lawn in violation of the laws of the State of New Jersey.

'3. That the public duties aforesaid, at all times herein mentioned, were enjoined by law upon him, the said Williford T. Williamson, and that the said Williford T. Williamson was vested with full power and lawful authority for the proper exercise of the said duties so enjoined upon him, the said Williford T. Williamson, all of which he then and there well knew.

'4. That, nevertheless, the said Williford T. Williamson, being such public officer, as aforesaid, and well knowing the premises aforesaid, but disregarding the public duties so by law enjoined him, as aforesaid, then and there and at all times hereinabove mentioned, (1) continuously, unlawfully and wilfully did fail, omit and neglect to perform the duties so enjoined upon him, and then and there and at all times herein mentioned, continuously, unlawfully and wilfully did fail, omit and neglect the public duty of using all lawful, proper, reasonable and effective means and diligence in complying with the laws of the State of New Jersey in the awarding of contracts, work and materials for the Borough of Fair Lawn in the purchasing and supplying of fill for Borough purposes, road improvements, storm drain improvements, and divers other types of work performed within the Borough of Fair Lawn, but on the contrary, did (a) continuously, unlawfully and wilfully, and at all of the times herein mentioned, award contracts, work, and the purchaing of materials for the Borough of Fair Lawn without complying with the laws of the State of New Jersey, and then and there and at all times herein mentioned, continuously, unlawfully and wilfully did fail, omit and neglect his public duty of refraining from entering into any contract on behalf of his department and the Borough of Fair Lawn for the doing of any work and for the furnishing of labor and materials, where the sum to be expended exceeded the sum of $1,000.00, unless there was first public advertisement for bids, therefor, and an awarding of the contract to the lowest responsible bidder pursuant to law, but (b), on the contrary, he wilfully and deliberately circumvented and disregarded his public duty and so arranged and split up the contracts by way of purchase orders in sums of less than $1,000.00, although in fact the work to be awarded and the sum to be expended therefor exceeded the sum of $1,000.00, and (c) that he wilfully and deliberately circumvented and disregarded his public duty and awarded job contracts by way of purchase orders in excess of $1,000.00, and then and there and at all times herein mentioned, continuously, unlawfully and wilfully did fail, omit and neglect the public duty of not negotiating and promising to award a contract for work, labor and materials under an agreement or understanding that he would act in any particular manner with reference to the affairs of the Borough of Fair Lawn, but, on the contrary, he (2) did wilfully and deliberately negotiate, arrange and promise that he would award the contract for purchasing and supplying of fill for Borough purposes, road improvements, storm drain improvements, and divers other types of work to Home Owners Construction Co., a corporation of the State of New Jersey, Frank Toriello & Sons, Inc., a corporation of the State of New Jersey, Sanitary Construction Co., a corporation of the State of New Jersey, and Dominick Romeo without advertisement and awarding of the contract to the lowest responsible bidder, and without the passage of an emergency or exigency resolution of the governing body of the Borough of Fair Lawn in accordance with the laws of the State of New Jersey; contrary to the provisions of N.J.S. 2A:85--1 (N.J.S.A.), and against the peace of this State, the government and dignity of the same.'

The bracketed numbers we have inserted in paragraph 2 identify the four separate duties which the State contends the defendant owed the public as an official, and violated; the bracketed numbers and letters in paragraph 4 identify in broad outline, the substantive acts or omissions charged to constitute defendant's violations of the duties specified in paragraph 2.

I.

Defendant's first ground of appeal requires no extended discussion. The contention is that R.S. 40:50--1, N.J.S.A., the bidding statute which the indictment charges defendant ignored and contravened, was repealed by L.1957, c. 30, and that this operated to abrogate the criminality of any conduct by the defendant prior thereto based upon the statute cited. Den ex dem. James v. DuBois, 16 N.J.L. 285 (Sup.Ct.1837), is relied upon. The case stands for the common-law principle that the repeal of a penal law will ordinarily carry with it immunity from punishment or prejudice for acts done or omitted contrary to that law.

There are at least two ready answers to the argument, the most obvious of which is that L.1957, c. 30 did not, in fact, repeal R.S. 40:50--1, N.J.S.A., but merely amended it to increase from $1,000 to $2,500 the contract minimum above which the statute requires public advertisement for bids on municipal contracts and award to the lowest responsible bidder. See Sutherland, Statutory Construction (3rd ed. 1943), § 2002, p. 447. In this amendment there is not the slightest warrant for deriving the inference of a legislative intent that any offenses constituting the common-law crime of misconduct in public office, based upon the violation of duties grounded in the bidding statute (State v. Startup, 39 N.J.L. 423, 426 (Sup.Ct.1877)), and committed prior to the amendment, were to be absolved by its adoption. The amendment evinces no more than a legislative design that the minimum contract figure should be raised from $1,000 to $2,500 insofar as prospective transactions were concerned.

Even were the 1957 act regarded as a repealer of R.S. 40:50--1, N.J.S.A., the DuBois case, supra, would not be authoritative. There, the law repealed, itself, imposed the sanctions held abolished by the repeal. See Sutherland op. cit., supra, § 2046, pp. 529, 530. Here the public bidding statute, R.S. 40:50--1, N.J.S.A., imposing the duty at the foundation of the charge of misconduct, contains no sanctions. Those are provided by N.J.S. 2A:85--1, N.J.S.A., which establishes as misdemeanors 'all * * * offenses of an indictable nature at common law' not otherwise provided for by statute. R.S. 40:50--1, N.J.S.A., not being a penal law, the principle of the DuBois case does not come into play.

The disposition of this point of appeal on the bases specified makes it unnecessary to pass upon the question as to whether R.S. 1:1--15, N.J.S.A., saving from discharge any offense committed 'under' a statute later repealed unless expressly discharged or released in the repealing statute, is applicable to the...