For the prosecutor, Maurice C. Brigadier.
For the respondent, Eugene T. Sharkey, Special Assistant Attorney-General.
Before Justices Case and Donges.
The opinion of the court was delivered by
CASE, J. Our earlier decision is in an opinion by the late Mr. Justice Porter reported in 131 N.J.L. 491. The case is remanded to us by the Court of Errors and Appeals. 133 Id. 126, for further disposition. For other phases of the litigation see In re Hudson County Board of Taxation, 128 Id. 574; Vanderbach v. Hudson County Board of Taxation, 130 Id. 3, and 130 Id. 490.
We understand that the present mandate to the Supreme Court is, in essence, to determine whether the specifications of misconduct laid by the Hudson County Board of Taxation against the prosecutor herein as secretary of the board were
within the pertinent statutory category and were well founded in fact and also to determine the facts and the law bearing upon the preliminary suspension of prosecutor.
The matter had its inception in proceedings had before Governor Edison as a result of which the Governor removed Patrick A. Monahan, George Scheetz, Harry Bischoff and Alexander D. Sullivan, the theretofore existing members of the Hudson County Board of Taxation, and appointed with the confirmation of the Senate, an entirely new board.
Those proceedings were under R.S. 54:3-28, which provides:
"A member of a county board of taxation who shall willfully or intentionally fail, neglect or refuse to comply with the constitution or laws of this state relating to the assessment and collection of taxes, or to perform a duty prescribed by this title, may, after a proper hearing, be dismissed by the governor, and his office declared vacant. The governor may thereupon appoint his successor in accordance with the provisions of this chapter."
The constitutionality of a procedure similar to that set up in the statute was sustained by the Court of Errors and Appeals in McCran v. Gaul, 96 N.J.L. 165. The act of the governor in removing the old and appointing the new board was not under challenge at the time of the events herein recounted nor, with the exception hereinafter noted, has it since been. Had the old members of the board chosen, while still in possession, to dispute the legality of the appointment of the new members certiorari was available to them, Murphy v. Freeholders of Hudson County, 92 Id. 244; and later, quo warranto, Murphy v. Ellenstein, 119 Id. 159. Instead, they stood by while the tax board offices were blocked against entrance and the records were removed to a vault that was not the usual resting place of the records and that was under the control of the Hudson County Board of Chosen Freeholders and not of the tax board. As Mr. Justice Bodine said in In re Hudson County Board of Taxation, 128 Id. 574, 587, they (the removed members) were "not in office except by force." Nevertheless force was exercised to the extent that the new members were compelled to obtain court process [133 NJL Page 501] to get possession, and this orderly process, resorted to by the new and not by the old members, was the exception above noted. In that proceeding it was held that the new appointees were, prima facie, the board; but while the opinion recognized, it did not create that condition. The new members from the time of their appointment were indisputably prima facie the board; yet the secretary knowing all things in full detail elected to make common cause with those who flouted that prima facie board until a court order left no middle course between surrender and contempt. At the time of the removal of the old, and the appointment of the new, members of the board Harry W. Vanderbach, prosecutor herein, was the secretary of the board. On July 23d, 1942, which was the date of the removal, the Governor issued a writing, called a "directive," signed by him under the great seal of the state, addressed to Vanderbach as secretary, informing the latter of the removal of the old board members, a copy of the order of removal being attached thereto, and directing him to preserve and keep safe the records, property and effects of the board where the said records and effects then were (the office of the Hudson County Board of Taxation in the court house of Hudson County), to see to it that no unauthorized person or persons had access to such records, property and effects or to the offices of the board, to carry on such routine duties as were necessary for the proper functioning of the office until the new members of the board should take office and then to turn over to the newly appointed members of the board all the said records, property and effects of the Hudson County Board of Taxation intact and in proper condition. For the purposes of this decision we are assuming that the directive -- of which we shall say more presently -- thus formally delivered to Vanderbach did not bind him to further obligations than he was already under and did no more than to emphasize, with such emphasis as attends a formal document from the Governor of a sovereign state delivered in person by the Secretary of State, the fact that a matter of great importance to the public generally was pending and that Vanderbach was expected to be circumspect and to do his full duty with respect thereto. We
consider that the event served to put Vanderbach on notice that the matter was one of grave moment in which allegiance should be had by him to the board of which he was the secretary and not ...