On writ of certiorari and motion to quash.
For the State of New Jersey, Horace K. Roberson, Prosecutor of the Pleas in and for the County of Hudson, and William P. Gannon, Assistant Prosecutor.
For the defendants-prosecutors, Frank G. Schlosser.
Before Case, Chief Justice, and Justice Burling.
The opinion of the court was delivered by
CASE CHIEF JUSTICE. The motion is to quash three indictments returned by a Hudson County grand jury, one of them against Robert A. O'Brien and William P. Black for conspiracy, another against those two and M. James McLaughlin for conspiracy, and the third against Robert A. O'Brien, alone, for misconduct in office. A separate writ of certiorari issued as to each indictment. The writs were consolidated, after return, to be prosecuted as a single case, and this motion ensues.
First as to the conspiracy indictments: Robert A. O'Brien was a public official. He was clerk and executive assistant to the Board of Tax Commissioners in the Department of Revenue and Finance of the City of Jersey City. William P. Black also was a public official. He was the deputy collector of taxes in and for the City of Jersey City. Those two holders of public office in the laying and collecting of Jersey City taxes, so indictment No. 318 charges, wickedly devising and intending unlawfully and fraudulently to enrich themselves and to defraud the city, bound themselves together to obtain sums of money unlawfully and by cheating the city, whose officials they were, of tax moneys by causing taxes levied on real property to be unlawfully reduced. There were other words charging intent, corruption and conspiracy, but such is the purport of the conspiracy charge.
The indictment enumerates thirty-three specified instances -- overt acts -- wherein that conspiracy was given effect and was manifested. One of those detailed instances is that O'Brien, without the concurrence of the Board of Tax Commissioners, whose clerk and executive assistant he was, or of the city assessor, on January 7th, 1941, in furtherance of the conspiracy and to effect the object thereof, caused to be executed and filed a stipulation with the New Jersey State Board of Tax Appeals agreeing to a reduction in the amount of $400 in the 1939 assessment of a property assessed against the Hudson City Savings Bank and that the State Board render judgment accordingly. Another was a like incident on January 7th, 1941, with respect to the 1940 assessment on the same property with the same owner, the reduction being $1,500. Another was for a like incident on the same day as to another lot but with the same owner whereon the reduction was $200. Thus, incident by incident, fully detailed, the indictment sets up thirty-three instances in which O'Brien in the years 1941 and 1942, in furtherance of the conspiracy and without the concurrence or authority of the city assessor or of the Board of Tax Commissioners, that consents with the State Board of Tax Appeals agreeing that that body should enter judgments reducing assessments levied against the Hudson City Savings Bank. The indictment proceeds to enumerate three further overt acts alleged to have been in furtherance of the conspiracy, namely, that the said William P. Black did receive and take from Hudson City Savings Bank, on July 15th, 1940, $500 for his services rendered in securing the said tax reductions; so, $500 on July 14th, 1941, as like compensation; and, so, $500 on July 14th, 1942, as like compensation.
Indictment No. 70 is directed against the same two public officials and also M. James McLaughlin, a sub-assessor for the Board of Tax Commissioners in the Department of Revenue and Finance of Jersey City, and with similar words of illegality, intent, fraud and corruption the charge is that the three conspired to cheat and defraud the City of Jersey City of its moneys derived from taxation. The indictment sets up four overt acts. First, that McLaughlin, on December
1st, 1943, in furtherance of the conspiracy and to effect the object thereof, caused to be issued and recommended an authorization to revise the 1944 assessed valuation of certain specified real property owned by the said Black in the sum of: Land $6,400, improvement $4,000, a total of $10,400; said revised assessment being a reduction from the 1944 assessment which had been recommended by the Board of Tax Commissioners in the sum of: Land $6,400, improvement $8,200, a total of $14,600. Second, that O'Brien, on December 9th, 1943, in furtherance of the conspiracy and to effect the object thereof, approved, in writing, the said authorization. Third, that O'Brien, on December 9th, 1943, in furtherance of the conspiracy and to effect the object thereof, willfully, unlawfully and corruptly failed, neglected and refused to notify and call the attention of the Jersey City Board of Taxation, at its regular meeting held on that day, to the said authorization and O'Brien's approval of the same. Fourth, on January 8th, 1944, O'Brien, Black and McLaughlin, likewise in furtherance of the conspiracy and to effect the object thereof, caused to be modified, erased and changed the official figures of the said assessment, namely, land $6,400, improvement $8,200, as approved, advised and recommended by the Board of Tax Commissioners of Jersey City and appearing as such in the official tax lists for the year 1944 to read and appear to be assessed with the approval, advice and recommendation of the said board as land $6,400, improvement $4,000; all contrary to the form of the statute in such case made and provided and against the peace of this state, the government and dignity of the same.
The objections raised by defendants' brief to the conspiracy indictments are that neither indictment charges the statutory crime of conspiracy under R.S. 2:119-1; that to be sustained at all the indictments would need to be rested on the common law, a course which, they say, is barred by the decision in State v. Borg, 9 N.J. Mis. R. 59; that there is no charge that the money paid Black by the bank was unlawfully paid or unlawfully accepted; that O'Brien is not charged ...