Doll v. The State. DOLL V. THE STATE. Criminal law--Officer interested in municipal contract. 1. A person duly elected to, and holding the office of member of the board of public works of the city of Cincinnati, is “ an officer elected to an office of trust or profit in this state," within the meaning of section 6969 of the Revised Statutes, which makes it a crime for such officer to become "directly or indirectly interested in any contract for the purchase of any property or fire insurance, for the use of the state, county, township, city, town or village," and is amenable to the provisions of that section, if, while acting as such officer, he becomes interested in a contract for the purchase of property for the use of the city. 2. To become so interested in the contract, it is not necessary that he make profits on the same. But it is sufficient, if while acting as such officer, he sell the property to the city for its use, or is personally interested in the proceeds of the contract of sale, and receives the same or part thereof, or has some pecuniary interest or share in the con tract. 3. In a prosecution against such member of the board of public works, for having become so interested in a contract for the purchase of property for the use of the city, while acting as such officer, it is no defense that, when the contract was made, the proper officer had not certified that the money required for the contract was in the treasury to the credit of the proper fund, or specifically set apart to meet such expenditure. (Decided December 13, 1887.) ERROR to the Court of Common Pleas of Hamilton County. The case is stated in the opinion. M. F. Wilson, Campbell & Bettman and Paxton & Warrington, for plaintiff in error. Wm. H. Pugh, prosecuting attorney for the state. WILLIAMS, J. At the November term, 1886, of the court of common pleas of Hamilton county, the plaintiff in error was indicted under section 6969 of the Revised Statutes, for the crime of having become interested in a contract for the purchase of property for the use of the city of Cincinnati, Doll v. The State. while acting as a member of the board of public works of that city, that being an office of trust and profit in this state. He was convicted at the May term, 1887; and his motions for a new trial, and in arrest of judgment, having been overruled, and sentence pronounced, he filed his petition in error in this court, asking the reversal of the judgment. 1. It is first contended by the plaintiff in error, that the trial court erred in overruling his challenge to the juror Pfaflin. In regard to this assignment of error, it is sufficient to say, that the opinion of the juror was not formed from reading or hearing the testimony of witnesses, or conversations with them; but merely from newspaper reports. He testified on his voir dire, that he would, if selected, render an impartial verdict, and it appears that the court, by accepting him, was of the same opinion. He was a competent juror. McHugh v. State, 42 Ohio St. 154. 2. It is further contended, that section 6969 of the Revised Statutes, has no application to officers of municipal corporations, but that it constitutes a crime for them to become interested in contracts, only when done in violation of section 6976. This is the proposition given most prominence in the argument, and apparently most relied upon, by plaintiff in error. The question is presented on the record in various forms; first by the motion to instruct the jury to return a verdict for the defendant at the close of the testimony for the state; then by exceptions to the rejection of testimony offered by the defendant to prove the value of the property sold, and that he made no profits on the contract; again by exceptions to the charge of the court; and finally by the motion in arrest of judgment. The two sections read as follows: "Section 6969. An officer elected or appointed to an office of trust or profit in this state, and an agent, clerk, servant, or employe of such officer, or of a board of such officers, who, while acting as such officer, agent, clerk, servant, or employe, shall become, directly or indirectly, interested in any contract for the purchase of any property or fire insurance for the use of the state, county, township, city, town, or village, shall be Doll v. The State. imprisoned in the penitentiary not more than ten years nor less than one year. "Section 6976. An officer or member of the council of any municipal corporation who is interested, directly or indirectly, in the profits of any contract, job, work, or services for the corporation, or acts as commissioner, architect, superintendent, or engineer, in any work undertaken or prosecuted by the corporation during the term for which he was elected or appointed, or for one year thereafter, shall be fined not more than one thousand nor less than five hundred dollars, or imprisoned not more than six months nor less than thirt days, or both, and shall forfeit his office." These sections define different crimes and prescribe different penalties. The former applies in terms to any officer, elected or appointed to an office of trust or profit in this state; the latter to officers of municipal corporations only. Under the former section the crime consists in the officer, while acting as such, becoming interested in any contract for the purchase of property or fire insurance for the use of the state, county, township, city, town, or village; by the latter it is made to consist in the municipal officer becoming interested in the profits of any contract, job, work, or services for the corporation, or acting as commissioner, architect, superintendent, or engineer of any work undertaken or prosecuted by the corporation, during his term, or for one year thereafter. Allowing that the former includes municipal officers, the sections provide for distinct offences, and both may consistently stand, and be made operative. It is not claimed for the plaintiff in error, that the office held by him was not one of trust or profit in this state, or that the contract in which he is charged to have been interested, was not for the purchase of property for the use of the city, and made while he was acting as such officer, within the exact terms of section 6969. His real contention is, that, because by the revision of the statutes, section 22 of the act "to regulate the Ohio soldiers' and sailors' orphans' home" (73 Ohio L. 31), section 21 of the act "to better provide for the organ Doll v. The State. ization of hospitals for the insane" (73 Ohio L. 86), and section 34 of the act "to regulate and govern the Ohio penitentiary" (73 Ohio L. 43), were carried into section 6969, it must, by construction, be limited in its application to the of ficers and cases specified in those acts. By them, it was made criminal for any trustee, superintendent, physician, or matron of the soldiers' home, or of any hospital for the insane, to be interested in any contract for the purchase of any building material, or for any building or improvement, or for any article of furniture supply, or provisions, for the use of their respective institutions; and for any officer or employe of the penitentiary to be interested in any contract of purchase made by the steward. This court has repeatedly recognized and applied the rule relied on by counsel for the plaintiff in error, that "where an act of the legislature, or several acts in pari materia, have undergone revision, the same construction will prevail as before revision, unless the language of the new act plainly requires a change of construction to conform to the manifest intent of the legislature." It would seem, however, that the legislature intended the section under discussion to have a more general application than the statutes referred to, from the fact that it is no longer part of the legislation relating to particular institutions, but is incorporated into the general crimes act; and its provisions are not, as were those statutes, confined to certain specified officers of those institutions, but in express terms embrace all officers, elected or appointed to any office of trust or profit in the state. By no construction of its language can it be limited to the officers of the institutions mentioned, or to the kinds of contracts specified in the former statutes. There is no rule of construction which authorizes the court to say that the language, "any contract for the purchase of property for the use of the state, county, township, city, town or village," means simply contracts for the purchase of property for the use of the penitentiary, hospitals for the insane, or soldiers' home; or that the language "an officer elected or appointed to an office of trust or profit in this state," comprises none but trus Doll v. The State. tees, physicians, matrons and stewards of the penal and benevolent institutions of the state. It must be admitted that the provisions of section 6969 are more comprehensive than the statutes in force at the time. of the revision, and this being conceded, the rule of construction contended for becomes inapplicable, and the scope of the section must be determined by giving effect to its language, which is plain and unambiguous. It is not difficult to see why the section was enacted in its present form, for if, to make it a grave crime for officers of the public institutions of the state to be interested in contracts pertaining to such institutions, be a wise measure, calculated to insure official integrity, and protect the state against frauds, sound policy would seem to require that a like provision be extended to all similarly situated. To permit those holding offices of trust or profit to become interested in contracts for the purchase of property for the use of the state, county, or municipality of which they are officers, might encourage favoritism, and fraudulent combinations and practices, not easily detected, and thus make such officers, charged with the duty of protecting those whose interests are confided to them, instruments of harm. The surest means of preventing this, was to prohibit all such contracts; and the legislature having employed language sufficiently clear and comprehensive for this purpose, there is no authority in the courts under the pretext of construction to render nugatory the positive provisions of the statute. We see no reason to doubt that section 6969 applies to officers of municipal corporations, and there was, therefore, no error in overruling the motion of the defendant below to instruct the jury to return a verdict of acquittal, nor in excluding the evidence offered by him to prove the value of the property, or that he made no profits on the contract, nor in the charge of the court on that ques tion. 3. The court in its charge instructed the jury as follows: "Defendant's counsel claim that no valid contract existed between the city and the defendant, at the time the horses were sold to the city, because the comptroller of the corporation did VOL. 45-29 |