State v. Robinson , 71 N.D. 463 ( 1942 )

I agree with that part of the opinion which defines the term "interested individually," as used in § 9829 of the Compiled Laws. I believe our determination should be that the question, as certified to us, cannot be answered "Yes" or "No," as this issue is always a question of fact for the jury to determine. Many cases may arise where the relationship set forth in the question does not in itself alone make the officer "interested individually" in the specific contract under investigation.

In the light of the determination of question No. 1, the answers to questions 3 and 4 are "not necessarily so," or words to that effect, the issues presented thereby being always a question of fact.

I agree that the answer to question No. 5 is "No," as the question shows clearly that if any crime be set forth in the information, the venue is not in Burleigh county.

I disagree with the holding of the court that question No. 2 must be answered in the affirmative. Section 9829 of the Compiled Laws provides that "Every public officer, being authorized to . . . make any contract in his official capacity, who voluntarily becomes interested individually in such . . . contract, directly or indirectly, is guilty of a misdemeanor."

The majority answers this question, "Yes," categorically. To me it seems clear that such question cannot be answered "Yes" explicitly. The question taken by itself is limited to acts of employees, and does not include acts of the defendant. How can it be said that employees of the Motor Vehicle Department, by purchasing merchandise from a corporation in which the defendant is a stockholder, and of which he is the secretary, are making such contracts as are contemplated by the terms of § 9829? How can it be said that such contracts are the contracts of the defendant? These contracts are the contracts of the employees — not contracts of the public officer involved.

If we take into consideration the bill of particulars as a supplement to the information, in order to attempt an answer to question No. 2, even then we cannot answer "Yes" in all cases. Paragraph 3 of the bill of particulars deals with the acts of the defendant and the contract entered into by him personally. Our answer to question No. 1 shows that such a situation is always a question of fact, and, therefore, cannot be answered "Yes" or "No." Paragraph 4 of the bill of particulars shows that some of the merchandise was bought by an employee under the authorization and direction of the defendant. Again, while this may be a contract as covered by the situation involved in question No. 1, it is always a question of fact, and thus cannot be answered "Yes" or "No" by this court. Paragraph 5 of the bill of particulars shows the method of preparing a voucher, but again, even if this shows a personal contract on the part of the defendant, it is determined by the answer given to question No. 1.

Thus if question No 2 be taken as it reads, contracts of the employees cannot be held to be contracts of the defendant. If taken in connection with the bill of particulars, so that it can be said the contracts of the employees are the contracts of the defendant, then we always have a question of fact for the jury, and thus cannot say definitely that the answer is "Yes" in all cases.

We must take the law of the state into consideration, as the majority of the court does. The defendant and the employees of the Motor Vehicle Department are reimbursed for their reasonable traveling expenses. This assumes that the contract in which these expenses are incurred is a contract made by them individually, and they are to be reimbursed by the Department if the amount be reasonable. If the defendant or the employees purchased gasoline and oil in the use of these cars on their official business, it is their bill and their debt. They are not authorized to charge this to the state. It is not a contract into which they enter in an official capacity. When the bill is audited, it may be disallowed because it is unreasonable, and no matter what they pay, they are only to be reimbursed for the reasonable expense. The fact that such an account is short-circuited, so that instead of paying out the cash and then presenting a bill therefor to the auditing board, a bill is presented in the name of the firm from which the purchase is made, does not change the situation. The account is still one for reasonable, necessary expense, for which reimbursement is to be made. Such a contract or purchase is not within the purview of § 9829 of the Compiled Laws.

If the information and the bill of particulars are to be considered in answering question No. 2, then the answer is too broad. In other words, under the facts in the case as set forth, and which are given as the basis for question No. 2, no specific answer can be returned to this question, for it is not all contracts for the purchase "of commodities or supplies necessary and essential to operation of vehicles used by employees of the Motor Vehicle Department in travelling, and owned by such Department," which come within the purview of § 9829. Some clearly do not. Others involve questions of fact to be determined by the jury in the light of the rule laid down in dealing with question No. 1.

As has been intimated in argument and discussion,

"A question of law certified to this court ``must be clearly stated and not involve questions of fact or those of mixed law and fact, involving inferences of fact from particular facts stated in the certificate. It must be so distinctly stated that it can be answered and determined by this court without regard to other issues of law or of fact.' Stutsman County v. Dakota Trust Co. 45 N.D. 451, 178 N.W. 725. See also Malherek v. Fargo, 48 N.D. 1109, 189 N.W. 245.

"The statute (§ 7849b1 Supplement to Compiled Laws) contemplates the certification of definite and distinct propositions of law. The same rule applies in both civil and criminal cases. The quotation from Stutsman County v. Dakota Trust Co. supra, has been approved by this court in two criminal cases namely, State v. Fahn, 52 N.D. 134, 202 N.W. 130 and State v. Elkin, 68 N.D. 93, 277 N.W. 89. See also 3 Am Jur 759, appeal and error.

"The answer to question No. 2 could be either, yes or no, depending upon undisclosed facts. This question is too general and indefinite to be answered upon certification to this court under the provisions of § 7849b1-3, 1925 Supplement to Compiled Laws."