For the plaintiff-respondent, Lewis P. Scott (David R. Brone, of counsel).
For the defendant-prosecutor, Maurice Y. Cole.
Before Justices Bodine, Heher and Wachenfeld.
The opinion of the court was delivered by
WACHENFELD, J. The defendant was indicted by an Atlantic County grand jury for misconduct in office. He was the recorder of Atlantic City and the indictment alleged that in certain cases heard by him involving persons charged with operating a motor vehicle under the influence of intoxicating liquor who were found not guilty, he failed to give a report on the facts in each case to the Commissioner of Motor Vehicle as provided for by R.S. 39:5-42. A motion to quash the indictment made before the Atlantic County Court of Quarter Sessions was denied and the case comes before us on a writ of certiorari to review that result.
The defendant contends (1) the indictment does not charge the commission of any crime; (2) R.S. 39:5-42, requiring the filing of the report, is unconstitutional in that it violates article 3, paragraph 1, of the New Jersey Constitution; (3) the indictment is invalid on its face because it was returned by a grand jury which was not then in existence.
The indictment, after setting forth that the defendant at the times therein mentioned was the recorder of the City of Atlantic City and, amongst other things, was charged with the public duty of impartially conducting the trials of offenders charged with violation of the motor vehicle laws, states:
"That at the times aforesaid, the said Albert N. Shahadi as Recorder was charged with the public duty and enjoined by law to make a report in writing to the Commissioner of Motor Vehicles of New Jersey of all cases heard before him, the said Albert N. Shahadi, for any violation of the Motor Vehicle Act in which a motor vehicle was used in any manner within three days after the disposition of the case before him as a magistrate, upon forms provided by the Commissioner for that purpose, and such duty was enjoined upon the said Albert N. Shahadi irrespective of a finding by the said Albert N. Shahadi that such offender was either innocent or guilty of the offense charged."
It then alleges that there were arraigned before the defendant on charges of operating a motor vehicle under the influence of intoxicating liquor twenty-five different persons specifically set forth in the indictment, giving their full names, addresses and dates upon which their cases were disposed of, and in the next paragraph states that each of such offenders was found not guilty. Paragraph 6 of the indictment says:
"That the said Albert N. Shahadi did wilfully, fail, neglect and omit within three days of the dismissal of each of the persons hereinabove named from the charge theretofore pending against such person, to report the facts in such case in writing to the Commissioner of Motor Vehicles of New Jersey, he, the said Albert N. Shahadi well knowing ...