Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D.
Defendant, then one of the three members of the board of chosen freeholders which governs the County of Ocean (see N.J.S.A. 40:20-20), appeals from a judgment of conviction entered on a jury verdict finding him guilty of violating N.J.S.A. 2A:135-8(c).
This case stems from the furnishing and installation by Abco Floor and Wall Covering Inc. (Abco) of tile in the ladies room of the Ocean County court house for which it received $894. from the county. The State charged that defendant was financially interested in the transaction -- indeed that he was a 10% stockholder and a director of
Abco -- and therefore was guilty of the criminal offense described in paragraph (c) of N.J.S.A. 2A:135-8, which reads as follows:
Any member of a board of chosen freeholders or of the governing body of a municipality, or of a board of education in any school district, who:
a. Is directly or indirectly concerned in an agreement or contract for the construction of any bridge or building, or any improvement to be constructed or made for the public use or at the public expense; or
b. Is a party, either as principal or surety, to an agreement or contract between the county, municipality or school district, as the case may be, and any other party; or
c. Is directly or indirectly interested in furnishing any goods, chattels, supplies or property to or for the county, municipality or school district, the agreement or contract for which is made or the expense or consideration of which is paid by the board or governing body of which such member is a part --
Is guilty of a misdemeanor.
Defendant moved for an acquittal at the end of the State's case. When it was denied, he rested without offering any evidence. His first and principal contention on appeal is that it was error to deny the motion for acquittal; that the jury could not reasonably find from the State's evidence that he was guilty beyond a reasonable doubt of the crime charged. We disagree.
The public policy which N.J.S.A. 2A:135-8 (formerly Crimes Act, § 32; Comp. Stat. p. 1755) seeks to effectuate was described by Vice-Chancellor Backes in Ames v. Board of Education of Montclair , 97 N.J. Eq. 60 (Ch. 1925):
It is an inexorable rule of the common law, and it finds expression in our statute, that public servants shall not be interested, directly or indirectly, in any contract made with public agencies of which they are members. Public service demands an exclusive fidelity. The law tolerates no mingling of self-interest. [at 64-65]
However, to establish criminal liability under the statute requires more than a mere showing that the letter of the unrestricted legislative language has been violated. As construed in State v. Kuehnle , 85 N.J.L. 220, 225-226
(E. & A. 1913), the statute also requires the showing of a criminal intent.
The basic problem with which the court was concerned in Kuehnle was whether in enacting the statute the Legislature intended to make the prohibited acts "criminal without regard to the criminal intent," as a prior decision, Halsted v. State , 41 N.J.L. 552 (E. & A. 1879), had held was the legislative intendment in the case of a ...