Brennan, Jr., Wm. J., J.s.c.
Defendant Director of Revenue and Finance dismissed plaintiff as Hoboken City Attorney after a hearing on charges preferred by defendant and plaintiff brings this action in lieu of certiorari to review his dismissal.
The parties agreed at the trial and argument that the case was to be decided on the record below with the addition to that record of the ordinance creating the office of City Attorney and defining the City Attorney's powers and duties.
Rule 3:81-13 gives this Court discretionary power to make independent findings of fact and in this case the interests of justice plainly require that I do so. Plaintiff failed in an earlier action to disqualify defendant to hear the charges on the grounds of bias and prejudice. Rinaldi v. Mongiello , 4 N.J. Super. 7 (App. Div. 1949). This was because as a matter of "stern necessity" no hearing could otherwise be held. Plaintiff followed the practice now settled by the Appellate Division's decision in that case of making the objection for bias and prejudice of the defendant at the outset of the proceeding under review. This record discloses sufficient ground for that objection to impel my conclusion to make an independent finding of facts.
Under the former practice the former Supreme Court in reviewing this type of case not only had authority, but seemingly was under direction by statutory mandate, R.S. 2:81-8, to determine disputed questions of fact as well as law, Shibla v. Township Committee of Wall Township , 137 N.J.L. 692 (E. & A. 1948); and the doctrine of Devault v. Mayor of Camden , 48 N.J.L. 433 (Sup. Ct. 1886), urged by defendant here, and holding that the former Supreme Court would not review the testimony taken before the lower tribunal where there was a rational basis for the determination under review "nevertheless, must, in view of the legislation referred to (R.S. 2:81-8) be read, so to speak, in pari materia , with the statutory power of review thus clearly conferred." Kohn v. Tilt , 103 N.J.L. 110 (E. & A. 1926).
Inasmuch as I am exercising the power conferred by Rule 3:81-13 to make an independent finding of facts I have no
occasion to determine whether under the authority of Winberry v. Salisbury , 5 N.J. Super. 30 (App. Div. 1949), the statute, R.S. 2:81-8, was superseded by Rule 3:81-13, either altogether or only so far as is necessary to permit full scope of the rule.
I find that the record is utterly devoid of substantive testimony supporting defendant's findings of plaintiff's guilt of the charges made. Plaintiff was adjudged guilty on each of three counts, the first for insubordination and misconduct in office, the second for neglect of duty, and the third of an agreement with others to cheat and defraud the City by wrongfully stipulating tax assessment reductions before the Hudson County Board of Taxation and the State Division of Tax Appeals.
The last charge, implying, as it does dishonest conduct for personal gain, is so grave that, if true, it would necessarily warrant criminal prosecution of the plaintiff and certainly proceedings to disbar him. The evidence to support defendant's finding of guilt on this charge was, however, so flimsy and insubstantial that defendant's counsel at the argument abandoned reliance on any but one of the seven specified instances of alleged fraudulent mishandling set up in the charge.
The City Law Department was assigned to the Department of Revenue and Finance after the 1947 election of the incumbent commission. Defendant's designation of plaintiff as City Attorney was unanimously approved by the commission on June 10, 1947. On July 14, 1948, defendant by letter to the city comptroller purported to suspend plaintiff. The first two counts of the charges were served July 29, 1948, and the third on May 24, 1949. The hearings on all three were held in June, 1949, after the coming down of the Appellate Division's opinion.
The first count charged misconduct in office "in that on July 9, 1948, you connived, contrived and conspired with certain lawyers, the ...