For the prosecutor, John Drewen.
For the defendants, Raymond Schroeder and Thomas L. Parsonnet.
Before Justices Case and Donges.
The opinion of the court was delivered by
DONGES, J. After the court announced its decision to allow a writ of certiorari in this case, counsel, with the consent of the court, stipulated that the case should be considered upon the record submitted on the application for the writ and that the court should consider the merits as if the writ had actually issued and return thereto had been made. The case brings up the action of the Board of Commissioners of the City of Newark in dismissing prosecutor from his office of City Clerk after a hearing upon charges. There was a lengthy trial and the record is large.
Prosecutor was found guilty upon twelve of thirteen charges, charge No. 12 having been withdrawn. Some of the charges was closely related and are grouped together for the purposes of argument in the briefs. We shall consider them as so presented.
"That Harry S. Reichenstein, City Clerk of the City of Newark, did, on and before May 15th, 1941, contrary to the statutes in such case made and provided, cause the said City to incur liability for the payment of sums of money for purposes and in amounts not authorized by any appropriation included in any budget, temporary budget or emergency appropriation."
This charge grew out of the provisions made in the city clerk's budget for the municipal election for commissioners in May, 1941. It appears that the budget provisions were more than $7,000 less than the amount actually expended for the election. This was occasioned principally by two factors. The first was that allowance was made for the compensation of the more than 1,000 election officers at the rate of $10 per day whereas they were paid $15 per day. The other main item consisted of the expense attached to the voting by citizens absent in the armed service of the United States.
It appears by the testimony that when the budget was made up the prosecutor and his assistant adopted the figures of the budget for the year 1937 when the past previous municipal
election was held. In that year election officers were paid $10 per day, but after that election and before the 1941 election the Supreme Court filed an opinion, Gross v. Essex County Board of Elections, 120 N.J.L. 711; 198 A. 293, holding that election officers serving at a primary election were entitled to compensation at the rate of $15 per day. The significance of this decision and its effect on the municipal election was overlooked by the respondent and his staff. As to the expense of the soldier vote, the legislation which gave rise to this expense was adopted after the budget estimates were prepared and submitted to the city authorities.
In this situation the defendants contend that the failure to make proper budget requests constitutes such gross neglect of duty and lack of efficiency as to warrant dismissal from office. We think it does not. There could not be and it is not claimed that there was any improper motive on the part of the prosecutor in this regard. It was an honest mistake. It resulted in no loss or damage to the city. It did not interfere with the holding of a proper election. A supplemental appropriation was passed and all proper items of expense were paid. We think there is no sufficient cause for removal in the evidence adduced under this charge.
"That said Harry S. Reichenstein did, on and before May 13th, 1941, use or authorize, direct or permit to be used, property or personnel of the City of Newark, to wit:
"(a) The office of the City Clerk.
"(b) Stationery of the City ...