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In re Sworn Application of Mrs. William G. Wellhofer and Other Freeholders

Decided: March 5, 1952.

IN THE MATTER OF THE SWORN APPLICATION OF MRS. WILLIAM G. WELLHOFER AND OTHER FREEHOLDERS OF THE CITY OF ATLANTIC, IN THE COUNTY OF ATLANTIC, FOR A SUMMARY INVESTIGATION INTO THE MUNICIPAL EXPENDITURES OF SAID CITY


McGeehan, Jayne and Wm. J. Brennan, Jr. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

On March 29, 1948, an application for an investigation of the affairs of Atlantic City was made by 34 freeholders and taxpayers pursuant to the provisions of R.S. 40:6-1, et seq. On May 22, 1948, such investigation was ordered. In re Wellhofer , 137 N.J.L. 165 (Sup. Ct. 1948). Atlantic City and its officials then sought a writ of certiorari to review the order directing the investigation, but the writ was denied on July 6, 1948. In re Wellhofer , 137 N.J.L. 342 (Sup. Ct. 1948). By order of court, experts were appointed to prosecute the investigation. In August, 1950, the experts appointed by the court filed their final report, orders were entered making final allowances to them, and the investigation was concluded.

Thereafter, the two petitions which are involved in these appeals were filed. From the petitions it appeared that Stephen L. Valore, a member of the bar, was originally

consulted by certain taxpayers who desired an investigation into the municipal expenditures of Atlantic City. Stephen L. Valore and these taxpayers retained Thomas D. Taggart, Jr., a member of the bar, to appear and present the request for the investigation. The Valore petition set forth that from September, 1947, until June 27, 1948, Valore performed services in connection with legal research and in connection with the factual investigations involved in securing the order for the investigation, and it sought the allowance to him of a reasonable sum for such services. The petition on behalf of Taggart set forth that from November, 1947, until June 28, 1948, he performed services in connection with legal research and in connection with the factual investigations involved in the application, and appeared in court for these taxpayers in the proceedings to secure the order for the investigation; and, further, that he continued to perform services for such taxpayers in connection with the investigation until it closed in August, 1950. The petition on behalf of Taggart sought the allowance of $521.04 as out-of-pocket expenses, and a reasonable sum for the services rendered by him. No claim is made that Valore or Taggart performed any service or incurred an expense pursuant to any order or authorization by the court. The court dismissed both petitions.

Appellants argue, first, that under R.S. 40:6-1 counsel for applying taxpayers are entitled to counsel fees and reimbursement for expenditures incurred in connection with a summary investigation into municipal expenditures, both for services rendered and expenditures incurred prior to the appointment of experts under the statute and for services rendered and expenses incurred thereafter until the conclusion of the investigation; and, second, that the provisions of Rule 3:54-7 do not preclude the payment of such counsel fees and expenses incurred if petitioners would otherwise be entitled to such payment under R.S. 40:6-1.

R.S. 40:6-1, in pertinent part, provides that if 25 freeholders and taxpayers shall present to the named judicial

officer an affidavit setting forth that they have cause to believe that the moneys of such municipality or county are being or have been unlawfully or corruptly expended, such judicial officer may order a summary investigation into the affairs of such municipality or county, may appoint experts to prosecute such investigation, and may cause the results thereof to be published in such manner as he may deem proper. It then provides: "The costs incurred under this section shall be taxed by the justice, and upon his order be paid by the disbursing officers of the county or municipality whose expenditures may have been investigated."

The provision for investigation of the affairs of a municipality or county, on application of taxpayers, and the provision for payment of costs, substantially as quoted above, have been part of our statute law since 1879 (L. 1879, c. 15).

The proceeding authorized by this statute does not constitute an "action" as that word is generally defined. An action is generally defined as an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Ballentine's Law Dictionary (2 d ed. , 1948). The proceeding under this statute is in no sense against any one, and no conclusion therein is to be reached by the judge or the court. Hoboken v. O'Neill , 74 N.J.L. 57, 59, 60 (Sup. Ct. 1906). It results in no decision as to guilt or innocence, or as to any right of person or property. The statute merely provides a quasi -judicial method of ascertaining and, if the judicial officer should so determine, of publishing the facts of a very particular and vital phase of governmental activity. North Bergen Tp. v. Gough , 107 N.J.L. 424 (Sup. Ct. 1931). The general fee bill or bill of costs which applies to the ordinary action does not apply to this proceeding. Baldwin v. Freeholders , 58 N.J.L. 285 (Sup. Ct. 1895).

It is clear that the statute was intended: (1) to provide a method whereby taxpayers, who have cause to believe that moneys of a ...


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