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In re Application for Summary Investigation

Decided: October 25, 1937.

IN THE MATTER OF THE APPLICATION FOR A SUMMARY INVESTIGATION INTO THE AFFAIRS OF THE CITY OF NEWARK IN THE COUNTY OF ESSEX


On application of Warren Dixon, Jr., the appointed commissioner, for allowance of compensation for service of himself and counsel, and of expenses paid and incurred.

Pro se, Warren Dixon, Jr.

For the city of Newark, James F. X. O'Brien.

Before Justice Parker, at chambers.

Parker

PARKER, J. The order for this investigation was made on October 16th, 1936. The special commissioner set to work at once, and with my concurrence employed three counsel to assist him. The task may be described without exaggeration as a colossal one, which as specifically stated in the verified petition required the exclusive attention and services of the commissioner and his aides every weekday, including holidays, often Sundays, and a great many evenings, over a period of exactly one year. It was alleged that the petition is not sufficiently specific as to the time consumed. I did not read it at the argument, but on reading it since, find that it is adequate in that regard. I speak from personal knowledge in large measure, having been in almost daily contact with the commissioner or one or more of his assistants, except in July and August. The hearings were public in a courtroom of the county court house, and reported day by day in the newspapers. The investigation was pursued in the face of obstructive tactics, evasive testimony, refusals to testify, concealment, spoliation and destruction of documentary evidence. The report, a volume of four hundred pages, speaks for itself.

The time has come to compensate the commissioner and his aides, not one of whom has so far received any compensation whatever for services performed. Certain expenses have been paid; others incurred. Counsel for the city, appearing pursuant to notice, resists the application now made, on three principal grounds as noted by me at the argument. Nothing in writing was submitted. These grounds were: (1) insufficiency of the petition, as unverified, setting forth no details, and submitting no vouchers for expenses paid or incurred; (2) needless consumption of time and stenographic service in the taking of testimony; (3) invalidity of the whole proceeding as violative both of the state and national constitutions. These points may well be treated in reverse order.

As to the constitutional argument, it is now advanced for the first time, after a year, after completion of the work, and on a purely minor point, viz., a matter of costs. It is difficult to consider it as advanced seriously. So considering it, suffice it to say that constitutional objections to the statute underlying this proceeding have several times been raised, and as often overruled. Hoboken v. O'Neill, 74 N.J.L. 57; Park Ridge v. Reynolds, 74 Id. 449; North Bergen v. Gough, 107 Id. 424, 432. The matter is therefore judicially settled.

Fault is found with the investigation of matters more than two years old. But this is predicated on the incorrect assumption that the inquiry was limited to matters to be prosecuted under the criminal law. Neither by statute nor by the order is it so limited.

The objection of undue prolixity in examination of witnesses, &c., is likewise without substance. As noted, the hearings were public. The commissioner lacked the common law powers of a judge sitting in a common law court, to compel a recusant witness to answer by commitment for contempt, and much, if not most of the alleged prolixity is chargeable to this fact, particularly when it is understood that the great bulk of the evidence had to be extracted from unwilling and often contumacious witnesses. Here again, I speak from personal knowledge in part, having attended in person more than once at a hearing and compelled a witness to answer by taking steps for his incarceration in case of continued refusal; and having in fact attached one witness for contempt, the proceeding terminating in an apology and a fine after the desired testimony had been given. Again it is to be noted that this point is raised before me for the first time after the conclusion of the investigation. Further, it is to be noted that the commissioner and his aides are all counselors-at-law of standing and experience, who, for a year, have for most purposes abandoned their law practice to concentrate on this matter, and who can have no incentive to spin out a task which the longer it lasts, the more it interferes with their regular work and their prospects for the future. I see no merit in this point.

This brings us to the question of figures.

As to expenses -- the item of stenographic services by the official stenographer, $17,768.25, was approved by me orally at the argument. There is nothing to show that ...


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