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Murphy v. Board of Chosen Freeholders of Bergen County

Decided: December 19, 1932.

FRANCIS MURPHY, PROSECUTOR,
v.
THE BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY, GEORGE F. LOSCHE AND EDWARD O. WEST, RESPONDENTS; JULIUS PRUEFER, PROSECUTOR, V. THE BOARD OF CHOSEN FREEHOLDERS OF BERGEN COUNTY, GEORGE F. LOSCHE AND EDWARD O. WEST, RESPONDENTS



On writ of certiorari.

For the prosecutors, Chandless, Weller & Selser (John E. Selser, of counsel).

For the board of chosen freeholders of Bergen county, Stanton T. Lawrence.

For the respondents, George F. Losche, pro se.

Before Justices Parker and Lloyd.

Lloyd

The opinion of the court was delivered by

LLOYD, J. In these cases rules were given to the prosecutors to show cause why writs of certiorari should not be allowed to review an order made by George F. Losche, Esquire, and the board of chosen freeholders of the county of Bergen in July, 1931, discharging them as investigators in

the prosecutor's office of that county, and removing their names from the county payroll.

Both men were appointed in the summer of 1930, by the then prosecutor, Edward O. West; Mr. West was superseded in the prosecutor's office by George Hobart, Esquire, and he in turn, in July, 1931, by Mr. Losche, both under designation from the attorney-general. Mr. Losche took charge of the office, and, apparently, finding the services of these men unnecessary, wrote to the board of freeholders stating that their services would not be required after July 15th, 1931, suggesting that they be continued on the payroll until August 1st of that year, and their names then removed from the payroll. The board of freeholders passed the confirmatory resolution which it is now sought to review.

Proofs were taken under the rule and these established that the prosecutors are exempt firemen, and their claim is that they held positions by virtue of their appointment by Prosecutor West from which, under chapter 212 of the laws of 1911 they could not be removed except upon formal presentation of charges and a hearing thereon. They contend further that Mr. Losche was without power by virtue of his appointment to remove them and that the board of freeholders was without power in the premises.

Counsel have shown us no specific authority for the appointment of investigators under the prosecutors of this state. The designation by Prosecutor West must therefore have been by virtue of the power reposed in him "to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws" by the ninety-fifth section of the Criminal Procedure act as amended by chapter 238 of the laws of 1927 (page 775). They, therefore, held no office or position designated either by statute or municipal ordinance. As investigators their services might be temporary or otherwise, dependent upon the needs for their services and the will of the prosecutor of the ...


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