For William H. Boardman, William E. Sewell, and pro se.
For Harry Braverman, Merritt Lane.
For the prosecutor, township of North Bergen, Edward A. Markley.
Before Justices Case, Daly and Donges.
The opinion of the court was delivered by
CASE, J. The proceeding is on writ of certiorari to review an order made on July 31st, 1930, by Mr. Justice Campbell, granting allowances in a proceeding entitled "In the matter of the application for a summary investigation into the financial affairs of the township of North Bergen, county of Hudson, State of New Jersey." The investigation had been made on the order of Mr. Justice Kalisch after he had conducted a preliminary hearing. The order for the summary investigation embraced the appointment of John F. Gough to prosecute the investigation and William E. Sewell, a counselor-at-law, to prepare and present the evidence. It was followed by other orders by the same justice, directing the issue of subpoenas. Mr. Justice Kalisch died before the report of the investigation was rendered to him and before making the allowances. He was at the time of instituting the investigation, and continuously thereafter until his death, the justice assigned by the Supreme Court to the Circuit of Hudson county, within which the township of North Bergen lay. At his death his successor in such assignment was Mr. Justice Campbell. The order under review was made by Mr. Justice Campbell while he was acting under that assignment. The order was based upon, inter alia, a comprehensive and voluminous report by Mr. Gough and several bound volumes of testimony taken before him. It directed the prosecutor to pay to Mr. Gough the sum of $51,630.75, and to William E. Sewell the sum of $10,447.50; the allowance to the former being inclusive of $5,000 for his personal services, $35,000 for
the services, expenses and disbursements of Harry Braverman, auditor; $1,728.75 for the services and expenses of William H. Boardman, engineer, and $9,902 for the services of Neale Ransom, stenographer. The proceeding was under the statute entitled "An act to provide for the summary investigation of county and municipal expenditures." Pamph. L. 1907, p. 12, as amended by Pamph. L. 1911, p. 620; 1 Cum. Supp. Comp. Stat., pp. 136, 735, supplemented by a further act passed in 1911, 1 Cum. Supp. Comp. Stat., pp. 136, 736a.
The first point made by the prosecutor is that Mr. Justice Campbell had no authority to make the order. Section 1 of the 1907 statute provides that "if twenty-five freeholders * * * shall present to any justice of the Supreme Court an affidavit * * * that they have cause to believe that the moneys of such (municipality) * * * have been unlawfully or corruptly expended, it shall be the duty of such justice * * * to make a summary investigation * * * and at his discretion he may appoint experts to prosecute such investigation, and may cause the results to be published in such manner as he may deem proper; it shall be the duty of the officers * * * to obey any orders of such justice for facilitating such investigation and any refusal * * * may be punished by such justice as for contempt; the costs incurred under this act shall be taxed by said justice and paid upon his order by the disbursing officer * * *. The argument is that the statute is personal to the justice who instituted the proceedings and that inasmuch as Mr. Justice Kalisch initiated the inquiry he, and he alone, could thereafter make an order effective therein. In support, the prosecutors cite the liberty of the freeholders to make their application to any justice and the limitation of subsequent statutory reference to "such justice" and "said justice." A necessary corollary to this argument is that such a proceeding not only dies if and when the justice who started it dies, but that it becomes disabled with his disability, and is dissolved by the termination of his official tenure; this, too, without regard to the stage which the proceedings shall have reached, the nature or extent of the information obtained, or the
silence imposed by the lack of an authoritative order to ...