For the prosecutor, Richard J. Baker.
For the defendant, Henry L. Janowski and Dominick F. Pachella.
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
DONGES, J. This writ of certiorari brings up for review a resolution of the defendant, Garfield Water Commission, adjudging the prosecutor, James McAlpine, guilty of negligence in the performance of his duties as water superintendent of the City of Garfield and discharging him from that office.
By virtue of R.S. 58:11-18.7 prosecutor, having occupied his office for more than five years, had tenure of office and could be removed only after a finding of guilty upon charges served and after a fair and impartial hearing thereon.
Charges were served which contained twenty specifications of alleged derelictions of duty. Hearings were held at which testimony was introduced in support of the charges. Prosecutor was represented by counsel who cross-examined the various witnesses and actively participated in the trial. At the conclusion of the testimony in support of the charges, the prosecutor presented the brief testimony of one witness and, at the next hearing, moved for dismissal or a mistrial upon the ground that one member of the defendant commission had been absent from two of the sessions. Upon the denial of this motion prosecutor, through his counsel, declined to participate further in the hearings and consequently there was no testimony at all offered in contradiction of that in support of the charges and no testimony in an attempt to justify the conduct of the prosecutor in his office as water superintendent.
Upon this certiorari no contention is made that the evidence was insufficient to warrant the finding of guilt made by the commission. Three reasons for reversal were assigned but the first of these, challenging the jurisdiction of the commission, has been abandoned.
The first point argued is based upon reason three "that the said prosecutor was not accorded a fair trial in that the hearing began in the presence of five members of the board and after several witnesses had testified, one of the members became ill and unable to attend and the hearing then proceeded in his absence, during which time other witnesses were heard by only four members of the board. Following this, the fifth member resumed his seat, participated in the hearing, and voted to dismiss the prosecutor from his duties, by reason of which the said absent member of the board who had not heard all the testimony occupied no legal status as arbiter or judge to adjudicate upon the cause."
The hearings were held November 9th, 16th, 17th and 24th, and December 7th, 8th and 9th. On the last mentioned date prosecutor declined to participate further, as above stated. It appears that one of the commissioners did not appear, due to illness, at the hearings of December 7th and 8th, giving rise to the ...