For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Hall, J. Weintraub, C.J. (concurring). Weintraub, C.J., concurring in result.
This case is here on the State's appeal as of right by reason of a dissent in the Appellate Division. R.R. 1:2-1(b). The judgment there reversed a conviction for the common-law offense (N.J.S. 2 A:85-1) commonly referred to as misconduct in office and ordered a new trial. 58 N.J. Super. 185.
Defendant's contention that the State's proofs so failed to establish the crime charged as to have entitled him to a direction of acquittal was rejected by all members of the court, but the majority found errors in the charge necessitating reversal. The dissenting judge was of the opinion that the charge taken as a whole, in the light of the trial theory and proofs, did not evidence manifest wrong, injury or prejudice to the accused. R.R. 1:5-1. All questions are again presented to us. While we agree that a reversal was required and generally concur in the grounds on which it was put, our study of the record, briefs and oral arguments convinces us of some confusion in the minds of the trial court and counsel as to the elements of the offense not entirely clarified by the opinion of the Appellate Division. In view of the new trial to ensue as well as the general public importance of the matter, we deem it advisable to speak further.
The indictment first charged that defendant, sanitary inspector in the health department of Fair Lawn, had the duty of rendering public service to the borough "to the best of his ability and uninfluenced by motives adverse to the best interests of said Borough and the duty not to request or accept any gift, gratuity or promise to make any gift
under an agreement and understanding that he would act in any particular manner with reference to the affairs of his employer * * *." It went on to allege that, in violation of that duty, he, willfully, unlawfully and corruptly, demanded and received from a scavenger who held the garbage removal contract in the municipality a promise for the payment of money to him for services he would perform to protect the scavenger against problems which might affect the contract. The services were specified as the use of his influence and office "to take care of and minimize" complaints arising out of the removal of garbage, which might be brought to him in his official capacity, and to avoid any declaration of default on the contract and resultant forfeiture of the performance bond. Finally it was asserted that, "by virtue of the corrupt agreement aforesaid," the scavenger paid him some $2,500 in installments over a period of about 7 months in 1955. It will be noted the indictment did not charge that defendant performed the alleged services. The gravamen of the misconduct was the entering into of the corrupt agreement. At this point it may be further said that at the trial defendant admitted receiving the money, but claimed it was for another and lawful purpose.
We should observe, too, that defendant was also indicted for extortion (N.J.S. 2 A:105-1) in connection with the same payments. That indictment, in separate counts for each payment, charged in the language of the statute, that he, a public officer, by color of his office, unlawfully received and took from the garbage contractor, a specified sum "being a fee or reward not allowed by law * * * for performing his duties as the public officer aforesaid." The State moved to consolidate the indictments for trial, but the motion was denied in an order which stated no reason. The prosecution was directed to elect which indictment it would proceed upon and the misconduct charge was chosen. Although the propriety of the denial of consolidation has not been raised by the State, our view of the total situation makes it desirable to return to this phase of the matter later.
We thoroughly agree with the Appellate Division that there was not the slightest doubt both at the end of the State's case and the entire case of the clear sufficiency of evidence from which the jury could find the factual allegations of the indictment to have been established. In the first place, the Borough Manager, chief executive officer of the municipality and defendant's superior in the health department during the period involved, testified explicitly that defendant's "duties were to receive all garbage complaints and investigate and correct them if necessary," that he had assigned to defendant "the obligation of enforcing the garbage contract," and that the latter had in fact performed those duties. There is no sound basis for defendant's contention that the State failed to prove its case because the indictment alleged he held the office of sanitary inspector when in fact the proofs showed that technically he did not have or may not have been legally entitled to that title. The relevant duties actually assigned and undertaken are controlling in this type of situation and not the mere matter of designation of a title.
Moreover, the relation of defendant's duties to the subject matter of his alleged agreement with the scavenger is obvious. Not present here is the situation which concerned this court on one aspect of State v. Weleck, 10 N.J. 355 (1952), where it was necessary to determine the relation of the duty of a borough attorney to the enactment of a proposed zoning ordinance amendment, the passage of which he allegedly offered to influence in exchange for a sum of money. In addition, there can be no question but that defendant, no matter what his title, is an "officer" within the requisite that one must occupy such a status to be amenable to a charge of misconduct and related offenses. Kirby v. State, 57 N.J.L. 320 (Sup. Ct. 1894). Formalistic definitions and differentiations sometimes applied in other contexts (e.g., Fredericks v. Board of Health of Town of West Hoboken, 82 N.J.L. 200 (Sup. Ct. 1912)) have no place
here. The scope of the term should be governed by the nature of the particular problem. Reilly v. Ozzard, 33 N.J. 529 (1960). The underlying basis of the various crimes of official misconduct is the breach of a duty of public concern by one who by virtue of his position -- whatever it might be called -- is in some way entrusted with the public welfare. So the definition of "officer" with respect to any such crime must be so broad that no public employee can claim to be outside its circumscription so long as the alleged misconduct is at all related to his official duties and obligations, express or inherent. Cf. State v. Goodman, 9 N.J. 569, 583-584 (1952).
To return to the proofs, it is also not debatable that the State's evidence permitted the jury legitimately to find that defendant entered into the agreement with the contractor outlined in the indictment and that he did so with evil intent. Both the manager and scavenger testified that, during 1954 when the latter said defendant first demanded money and in 1955 when it was concededly paid to him, there was a large volume of citizen complaints about the admittedly poor garbage service. These included failure to make collections at all on appointed days and collecting at hours other than those specified in the contract, as well as less serious deficiencies. The contractor was in difficulties and had called in other scavengers who were actually making most of the collections. The contract contained provisions, with which defendant was acquainted, whereby the municipality could terminate for breaches and realize on the performance bond. The testimony of the heads of the contractor's business, outlined in detail in the opinion below (58 N.J. Super., at pp. 192-193), was more than adequate to justify a jury conclusion that defendant sought money on the representation that he had been aiding the contractor and minimizing, as far as the borough authorities were concerned, the complaints as best he could and would continue to do so, with the object of preventing any declaration of default on the contract and that the sums were agreed to be paid and were
paid on that basis. There is, therefore, no basis whatever for the contention that the State failed to establish the factual allegations of the indictment on its case.
The factual defense tendered did not change this posture. On vital aspects, it relied almost entirely on defendant's own testimony. He admitted receiving the money and his only explanation was that it was given to him voluntarily and at the suggestion of the heads of the scavenger business in 1955 to carry out a commitment made by the deceased former operator in 1954 which could not then be met because of the financial condition of the business. His story was that by reason of the many complaints in 1953 and 1954, caused generally by unfamiliarity with the work and poor performance of others whom the contractor had called in to assist, it became necessary for him to be out in the town before and after his appointed work-day hours as well as on Saturdays and Sundays to make sure that the trucks made the required collections and to investigate and rectify the many complaints pressed; that the deceased operator, in appreciation of his assistance, had in 1954 gratuitously offered to compensate him in the future for this extra time; and that the 1955 payments were to carry out that promise. His testimony was not clear whether he had performed the same extra hours work in 1955. The defense may be said to have rested on his own bald declaration that the payments were not for or in connection with the performance of his duties for the borough. His testimony, however, was not at all precise on the basis for the conclusion, i.e., whether it was simply because the work was done outside of his regular work hours of 9 A.M. to 5 P.M. or whether these services in the field merely went beyond his conception of his assigned duty of enforcing the garbage contract. The municipal manager was not called as a witness for the defense nor when testifying for the State was this phase of the subject explored by cross-examination beyond testimony that defendant had satisfactorily conducted his office. In any event, there was no intimation by defendant that
these services in the field were performed at the request of the contractor. Any possible inference that this work went beyond the scope of his duties was very considerably weakened by defendant's earlier testimony on direct examination that in the latter part of 1953 he had sought additional compensation from the manager because of these duties and the extra time spent and that the latter had agreed with him but knew of no way to provide it. It should also be noted that, according to defendant, he continued to do this off-hour work during 1954 at least, that his salary was increased in that year and again in 1955 and that he never told the manager of the money he received from the contractor in the latter year.
Consideration of the legal issues should be had in the light of a clear understanding of the elements of misconduct in office and related offenses as those crimes exist in New Jersey today. Some basic confusion is found because the term "misconduct in office" is sometimes used in a generic sense to refer broadly to all official wrongdoing, thus including in its sweep the more particularized crimes of extortion, bribery and the like, as well as in the special sense, as here, to designate an offense which bears no other name and is comprised of elements differing in some particulars from those of the related crimes. Distinctions have become shadowy and labels imprecise and somewhat non-exclusive. There are many situations, like that before us, where essentially the same factual situation could properly ground a prosecution for more than one of these offenses.
Let us first consider extortion. It should be noted at the outset that we are not here concerned with the term as used in its popular sense of "frightening" money out of people by threats, although that too may constitute a distinct offense. State v. Morrissey, 11 N.J. Super. 298 (Cty. Ct. 1951); see also N.J.S. 2 A:105-3 and 4. Our inquiry is limited to the crime in its classic sense, extended by our cases, as it relates to the wrongful taking of money by a public officer, whether accompanied by "threats" or not.
Our extortion statute, N.J.S. 2 A:105-1, which had its origin at least as early as 1796 (Paterson, Laws (1800), p. 212), appears on its face to have been originally intended to be reiterative of the common law. State v. Goodman, supra (9 N.J., at p. 584). Cf. State v. Weleck, supra (10 N.J., at p. 371). The essence of that offense was the receiving or taking by any public officer, by color of his office, of any fee or reward not allowed by law for performing his duties. The purpose would seem to be simply to penalize the officer who non-innocently insisted on a larger fee than he was entitled to or a fee where none was permitted or required to be paid for the performance of an obligatory function of his office. The matter was obviously of particular importance in the days when public officials received their compensation through fees collected and not by fixed salary. Our early cases dealt with precisely this kind of a situation. Halsey v. State, 4 N.J.L. * 324 (Sup. Ct. 1816); State v. Maires, 33 N.J.L. 142 (Sup. Ct. 1868); Cutter ads. State, 36 N.J.L. 125 (Sup. Ct. 1873); Lane v. State, 49 N.J.L. 673 (E. & A. 1887); Loftus v. State, 52 N.J.L. 223 (E. & A. 1889) (opinion reported only in 19 A. 183). See also State v. Seidman, 107 N.J.L. 204 (Sup. Ct. 1931), affirmed sub nom. State v. Fischman, 108 N.J.L. 550 (E. & A. 1931).
After a couple of opinions possibly indicating an extension to cover payments demanded for the favorable exercise of discretionary powers of the officer (Kirby v. State, 57 N.J.L. 320 (Sup. Ct. 1894); Conway v. State, 8 N.J. Misc. 406 (Sup. Ct. 1930)), an enlarged construction of the statute to its present day scope was announced in State v. Barts, 132 N.J.L. 74 (Sup. Ct. 1944), affirmed opinion below 132 N.J.L. 420 (E. & A. 1945). There on the trial of an indictment under the statute the State's proofs showed that a police officer of another state had demanded money, which was paid to him ...