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Wintermute v. Ellenstein

Decided: October 23, 1936.

JOHN S. WINTERMUTE, PROSECUTOR,
v.
MEYER C. ELLENSTEIN, MICHAEL P. DUFFY, PEARCE R. FRANKLIN AND ANTHONY F. MINISI, MEMBERS OF A MUNICIPAL INVESTIGATION COMMITTEE OF THE CITY OF NEWARK, NEW JERSEY, AND THE HONORABLE CHARLES W. PARKER, DEFENDANTS



On certiorari.

For the prosecutor, Edward R. McGlynn.

For the defendants, Frank A. Boettner and Harry V. Osborne.

Before Justices Trenchard, Bodine and Heher.

Bodine

[117 NJL Page 274] BODINE, J. The prosecutor was deputy director of the department of revenue and finance of the city of Newark

until January 17th, 1936. He then became deputy director of the department of parks and public property. On or about May 21st, 1936, he was served with a subpoena directing him to appear before the members of an investigation committee appointed by the board of commissioners of the city of Newark by resolution adopted December 13th, 1935. This he refused to do and resort was had to the Supreme Court under section 61 of the Evidence act. 2 Comp. Stat., p. 2238.

Prosecutor contends (1) that there is no legal justification for the appointment of an investigation committee in the city of Newark, and (2) that there is no authority in law to compel his appearance before such a committee. In order to test the legality of the court's action in ordering process of subpoena to issue, a writ of certiorari was allowed. The italics hereafter appearing in quotation are ours.

We will consider, first, the legality of the resolution creating the investigating committee. It provides, so far as needs statement, as follows: "Be it resolved by the Board of Commissioners of the City of Newark, that a committee consisting of Meyer C. Ellenstein, Michael P. Duffy, Pearce R. Franklin and Anthony F. Minisi, members of the Board of Commissioners of the City of Newark, be and the same hereby is appointed to examine any and all officials, officers and employes of the City of Newark, in relation to the discharge of his or their official duties or conduct, as the case may be, and to examine and investigate such additional subjects or matters, falling within the jurisdiction of this Board, as may, in the judgment of said committee, require or necessitate such examination and investigation."

It is argued that the resolution is invalid because it appoints a committee to investigate matters not within the jurisdiction of the board of commissioners. A reading of the resolution, in whole or any part, is a refutation of the argument. Newark is governed under the Walsh act. Section 4 of that act (Pamph. L. 1911, p. 465, as amended, Pamph. L. 1915, p. 495; Pamph. L. 1929, p. 623; Pamph. L. 1930, p. 996; Cum. Supp. Comp. Stat. 1930, ยง 136-8), provides in part as follows: "The Board of commissioners shall have and possess all

administrative, judicial and legislative powers and duties now had and possessed and exercised by the mayor and city council and all other executive or legislative bodies in any municipality, and have complete control over the affairs of such municipality. * * * they shall prescribe the powers and duties of all officers and employes and they may assign particular officers and employes to one or more departments and may require any officer or employe to perform duties in two or more departments, provided the work required of such officer or employe in such different departments be similar in character and make such other rules and regulations as may be necessary or proper for the efficient and economical conduct of the business of the city."

It is said that there must be a legitimate object in view for the creation of an investigating committee, and that the board of commissioners may do so only for the purpose of acquiring information which it seeks to use in connection with its function of legislation. This argument overlooks the fact that the board of commissioners possess and have all administrative, judicial and legislative powers formerly possessed and exercised by the mayor and city council and all other executive and legislative bodies in the city. There is no separation of these powers as under the state constitution setting up a form of government. The obvious reason for the granting of this power to the committee was so that the commission might do those things which were necessary for the efficient and economical conduct of the business of the city. To examine officers and employes of the city of Newark in relation to the performance of their official duties is clearly a legitimate exercise of the power vested in the city commissioners under the Walsh act. Such examinations are absolutely necessary if the city ...


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