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State v. Williamson

Decided: February 16, 1959.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILLIFORD T. WILLIAMSON, DEFENDANT-APPELLANT



Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D. Haneman, J.A.D. (dissenting).

Conford

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), 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 upon him, as aforesaid, then and there and at all times hereinabove mentioned, [1] continuously, unlawfully and willfully 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 willfully 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 others types of work performed within the Borough of Fair Lawn, but, on the contrary, did [a] continuously, unlawfully and willfully, and at all of the times herein mentioned, award contracts, work, and the purchasing 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 willfully 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 willfully 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 willfully 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 willfully 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 willfully 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. 2 A:85-1, 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, 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, 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 (3 rd 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, 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, imposing the duty at the foundation of the charge of misconduct, contains no sanctions. Those are provided by N.J.S. 2 A:85-1, which establishes as misdemeanors "all * * * offenses of an indictable nature at common law" not otherwise provided for by statute. R.S. 40:50-1 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, saving from discharge any offense committed "under" a statute later repealed unless expressly discharged or released in the repealing statute, is applicable to the situation before us, as urged by the State.

II.

Defendant's second argument for reversal runs along the following lines. Under the Municipal Manager Act, R.S. 40:82-1 et seq. , as amended, the municipal council, not the municipal manager, makes contracts for the municipality. The manager "recommends" measures to the council and "negotiates" contracts "subject to the approval" of the council. There was therefore no public duty imposed on the manager with respect to which there could be criminality through mere nonfeasance in the matter of ignoring the bidding statute in connection with the award or making of municipal contracts. It is argued that it would take "an act of commission as well as corruption" to render criminal the conduct of one "not charged with the performance of a public duty." In the alternative, it is contended that if the indictment is interpreted as being for malfeasance it is fatally devoid of the essential allegation of corruption, reliance being had upon what was said in State v. Winne , 12 N.J. 152, 175 (1953).

It will be helpful first to inspect the statutory specifications of a city manager's duties. So far as here material, they are stated as follows in R.S. 40:82-4:

"The municipal manager shall:

a. Be the chief executive and administrative official of the municipality;

c. Execute all laws and ordinances of the municipality;

e. Negotiate contracts for the municipality subject to the approval of the municipal council, make recommendations concerning the nature and location of municipal improvements, and execute municipal improvements as determined by the municipal council;

f. See that all terms and conditions imposed in favor of the municipality or its inhabitants in any statute, public utility franchise or other contract are faithfully kept and performed, and upon knowledge of any violation call the same to the attention of the municipal council;

h. Recommend to the municipal council for adoption such measures as he may deem necessary or expedient, * * *;

The municipal manager shall in all matters act under the direction and supervision and subject to the approval of the municipal council."

From the foregoing there can be no doubt that it was within the scope of the defendant's public duties to negotiate contracts of the kind mentioned in paragraph 4 of the indictment, subject to the approval of the council. Moreover, it would have been entirely appropriate, if not, indeed, within the usual and ordinary routine of the defendant's administrative responsibilities, for him to make the arrangements for advertising and receipt of bids on contracts requiring that procedure under the statute. We think that paragraph 2 of the indictment, in its obvious undertaking to specify the public duties resting upon the defendant relevant to the charge of misconduct laid against him, does so adequately, within the framework of the statutory delineation of those duties and the over-all duty of all public officials to render honest performance of their obligations in good faith. Driscoll v. Burlington-Bristol Bridge Co. , 8 N.J. 433, 474-476 (1952); State v. Weleck , 10 N.J. 355, 368 (1952). But defendant stresses that paragraph 4 of the indictment, the paragraph which undertakes to charge the specific acts and omissions violative of the respective duties,

specifies that defendant "awarded" contracts, and that he had no statutory right to do so without council approval. The State concedes that where the indictment charges an "award" it means just that, i.e. , that the defendant made awards without council approval, even though he had no legal power to do so, entirely apart from the matter of non-compliance with the bidding statute.

The question thus arises as to whether a city manager, required by law to negotiate municipal contracts subject to municipal council approval, to enforce compliance with statutory bidding requirements in the course of his administration of such transactions, and to see that all conditions imposed by any statute for the benefit of the municipality are faithfully performed, is immune from criminal prosecution for misconduct in office in effecting such contracts in the name of the municipality in willful disregard of the requirements of the bidding statutes, although applicable, merely because he misbehaved in the additional, uncharged respect of having failed to get council approval for the contracts. Defendant submits no authority to support the affirmative of that proposition; we know of none; and the idea does not commend itself on principle. Two wrongs do not make a right, especially where committed by the same individual. The wrongfulness of defendant's failure to procure council approval for contracts he negotiated does not derogate from the wrongfulness of his willful failure to see to it that there should be public advertisement and bidding in case of contracts exceeding $1,000 in amount, as charged. It is the latter accusation, solely, that concerns us in the present appraisal of the legality of this indictment.

Aside from the charge of misconduct in office in relation to the actual award of contracts in contravention of the bidding statute, it will be noted that there is a separate and distinct charge in paragraph 4 of misconduct by the defendant in having willfully arranged with and promised certain contractors that defendant would award them certain contracts without compliance with legal advertising and bidding

requirements. Defendant does not expressly argue that the misconduct implicit in such acts is mitigated by the separate aspect of illegality consisting of defendant's lack of legal right to make such awards. In any case, the position we have taken above would be equally responsive to such a contention, if urged.

We pause here, in passing, to notice that our dissenting colleague takes the position that there was no criminality in the charge of paragraph 4 [2] of the indictment that the defendant negotiated and promised to certain named firms that he would award contracts to them without complying with the bidding statutes. He makes the point that there is no charge of an overt act and that therefore no crime is laid to the defendant in that specific segment of the indictment. We are not going to determine the question as it was not argued by the defendant either in his brief or at the oral argument, and the matter is too important to resolve without the benefit of argument from both the State and the defendant, if raised. Moreover, aside from this portion of the indictment, enough remains to charge a crime, and the point in question can be raised at the trial and determined after argument. We take occasion here to cite, however, the disposition by the Supreme Court in State v. Weleck, supra , of the challenge to the official misconduct count there involved. That count also was based on a promise by an official. As to criminality without overt acts, see State v. Gaynor , 119 N.J.L. 582, 586 (E. & A. 1938).

III.

We next take up the contention of the defendant that it was necessary for the indictment to charge corruption, either in relation to the argument that such a charge was necessary in a context where defendant was charged with making awards of contracts, a function reserved by statute solely to the council, or on the theory that the charge here was misfeasance, an offense which is suggested in the Winne case, supra (12 N.J. at page 175), to imply corruption.

The State meets this argument by the simple expedient of contending that the indictment here essentially charges, not misfeasance, but nonfeasance, citing Winne to the effect that "corruption has never been an element of nonfeasance" (ibid.). The gravamen of the misconduct charged is said to consist of the failure of the defendant to comply with the bidding statute -- inaction in respect to a duty -- and thus nonfeasance. It should at once be noted, however, that the gravamen of the second principal malefaction charged to the defendant in paragraph 4 is the promising to certain people that contracts would be awarded them without the prerequisites of advertisement and bidding. This is essentially action, not inaction, and qualifies under the common definition of malfeasance -- "doing an act which is positively unlawful or wrong," Allas v. Borough of Rumson , 115 N.J.L. 593, 596 (E. & A. 1935). The fact that the draftsman of this indictment made a contrived effort to cast this offense in the guise of nonfeasance by postulating a public duty not to promise to award the contracts, etc. , and then charging a failure to perform that duty by promising, etc. , will not alter the essential nature of this aspect of the offense charged. Substance prevails over form. If it makes a difference legally whether the offense is to be regarded as nonfeasance or as malfeasance, we adjudge it is the latter.

It is, moreover, not beyond fair debate that the first aspect of the offense charged -- the award of contracts without complying with the bidding statute -- is to be regarded as misfeasance rather than nonfeasance, i.e. , "the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner." Allas v. Borough of Rumson, supra. We forego the resolution of that problem in classification, as we are satisfied that the law of this State does not require an indictment expressly to charge corruption where it is based upon the common-law crime of misconduct in office, whether the misconduct is classifiable as nonfeasance, misfeasance or malfeasance, so long as it charges willful action, omission, or a combination of

both, in breach of a duty of public concern, by one who has accepted public office.

We are not aware of any New Jersey case in which an indictment for common-law official misconduct was held bad for failure to charge expressly that the misconduct was committed corruptly. In State v. Kern , 51 N.J.L. 259 (Sup. Ct. 1889), cited by defendant, an indictment of public officials charged them with awarding a public contract without complying with a bidding statute, "unlawfully, willfully, corruptly and with evil intent." While the court stated (at page 265) that "a willful and corrupt awarding of a contract for such work * * * would be * * * indictable at common law," the disputed questions in the case had nothing to do with the essentiality of the inclusion of "corruptly" in the indictment. Elsewhere in the opinion it is suggested that the crime is committed if the prohibited act is done "willfully and with evil intent" (at page 261), citing State v. Startup, supra (39 N.J.L. 423). That case, also involving an alleged violation by public officials of the statutory duty of securing bids upon public advertising as a basis for the award of a contract, held an indictment invalid for failure to include in the charge an allegation that the acts were done "with an evil intent, or wilfully" (emphasis added). The full context of this holding is instructive (39 N.J.L. at page 426):

"But the act here forbidden is not necessarily criminal. It is not indictable at common law without the statute. It is only criminal when it proceeds from a criminal mind, and the indictment must be framed according to common law forms. Hence, in the absence of express words in the statute, making the act criminal, there must be a charge in the indictment that the offence was committed with an evil intent, or willfully. 1 Russ. on Crimes 49; Bish. on Stat. Crimes , § 132, note 61; State v. Halsted et al., supra [39 N.J.L. 402].

It follows that these two indictments are defective in not charging that the omissions to advertise, according to the terms of the statute, were done with an evil intent, or willfully. There is no allegation of willfulness, guilty knowledge or fraudulent intent."

It is obvious that the use of the word "wilfully" is regarded as imputing the criminal state of mind requisite

for a charge of the common-law offense of misconduct in office and that terms like "corruptly," "with evil intent," and "fraudulent intent" are used interchangeably with "wilfully" for this purpose. Compare State v. Halsted , 39 N.J.L. 402 (Sup. Ct. 1877). It is also to be noted that these early authorities do not distinguish, for the purpose under discussion, between the branches of misconduct in office denominated nonfeasance, misfeasance and malfeasance.

The opinion of the court in State v. Winne, supra , is ambivalent as to the requirement of a charge of corruption where the indictment is for malfeasance. The point is expressly reserved (12 N.J. at page 177) as not requiring decision in that case because of the court's conclusion that the charge there was nonfeasance, as to which the court says, "Corruption has never been an element of nonfeasance" (12 N.J. at page 175). The opinion goes on, however, to make a seeming demonstration that corruption is not an essential element of misconduct in office, whether the particular misconduct be regarded as nonfeasance, malfeasance or misfeasance (12 N.J. at page 176). Indeed, the court quotes 1 Burdick, Law of Crime , 388, as authority for dispensing with the allegation of either willfulness or corruption where the pertinent statute does not require it, and then declares: "That is the view prevailing in this State" (ibid.), citing State v. Jefferson , 88 N.J.L. 447 (Sup. Ct. 1916), affirmed 90 N.J.L. 507 (E. & A. 1916). In the Jefferson case it is expressly declared that a corrupt agreement is not "of the essence of the offense of ...


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