On certification to the Bergen County Court.
For reversal -- Chief Justice Vanderbilt and Justices Heher, Burling, Jacobs and Brennan. For affirmance -- Justices Oliphant and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J. Heher, J., (concurring in reversal). Wachenfeld, J. (dissenting). Heher, J., concurring in result.
[10 NJ Page 361] On June 26, 1951, the Bergen County grand jury returned two indictments against the defendant, one charging misconduct in office and the other attempted extortion. The defendant specially pleaded the statute of limitations and moved in the Bergen County Court to dismiss the indictments on the grounds that they were barred by the statute of limitations, R.S. 2:183-2, and that they failed to charge a crime. The County Court, being of the opinion that the indictments were not voted within the two-year period prescribed by the statute, granted the defendant's motion and entered judgments dismissing each indictment.
We granted the State's petition for certification to review the judgments thus entered, State v. Weleck, 9 N.J. 286 (1952).
Before proceeding to a consideration of the propriety of the action of the County Court we shall first dispose of the question raised by the defendant as to the jurisdiction of this court to review these judgments by way of certification directly to the County Court -- a question, incidentally, that was not raised by the defendant in opposition to the granting of the State's petition for certification.
Under the Constitution of 1844 it was recognized that the granting or denial of a motion to quash an indictment was only reviewable in the former Supreme Court by writ of certiorari for abuse of discretion, State v. Then, 114 N.J.L. 413 (Sup. Ct. 1935). Relying on Article VI, Section V, paragraph 4 of the Constitution of 1947 which provides,
"Prerogative writs are superseded and, in lieu thereof, review, hearing and relief shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where such review shall be discretionary."
the defendant contends that the Superior Court is the sole depository of jurisdiction to review the judgments dismissing the indictments against him. The defendant concedes, however, that if the State had taken an appeal to the Appellate Division of the Superior Court certification by this court to the Appellate Division while the appeal was there pending would have been in order. Such in effect was the procedure followed in Central R. Co. of N.J. v. Dept. of Public Utilities, 7 N.J. 247, 257-259 (1951).
We cannot agree with the defendant's contention that the procedure followed herein has left this court without jurisdiction. Pursuant to Article VI, Section V, paragraph 4 of the Constitution of 1947 it has been provided by rule that in lieu of prerogative writs in criminal causes review may be had in the Appellate Division of the Superior Court on appeal granted, Rule 4:5-1. More specifically, it has
elsewhere been provided by rule that in lieu of the former writ of certiorari, now abolished, the State may take an appeal from an order of the trial court dismissing an indictment, Rule 2:5-3(b) (7). Quite clearly, therefore, under our present Constitution and rules the State here had an appeal to the Appellate Division of the Superior Court. An appeal to the Appellate Division, however, was not the sole and exclusive way in which the State could secure a review. Article VI, Section V, paragraph 1 of the Constitution of 1947 specifically provides:
"Appeals may be taken to the Supreme Court: * * *
(d) On certification by the Supreme Court to the Superior Court and, where provided by rules of the Supreme Court, to the County Courts and the inferior courts; * * *."
Supplementing this constitutional provision this court has provided for certification directly to the County Courts and the inferior courts both on its own motion, Rule 1:5-1, and on petition, Rule 1:5-3. It was pursuant to this latter rule that the petition for certification in the instant case was made and granted.
Article VI, Section V, paragraph 1 of the Constitution of 1947 does not expressly require, and it has never by implication been construed to mean, that an appeal from a trial court to the Appellate Division of the Superior Court must first be taken before this court can exercise its power of certification. To hold that the jurisdiction of this court to entertain an appeal by way of certification was thus limited would be technical in the extreme. Article I, Section V, paragraph 1 of the Constitution of 1947 quite plainly means that whenever an appeal lies from a judgment of a trial court -- whether it be as of right or as a matter of discretion and whether it be from the Law or Chancery Division of the Superior Court, a County Court, or an inferior court -- we may certify the cause directly to the trial court, either on our own motion or on petition, without the necessity of an appeal
first being taken to the Appellate Division of the Superior Court.
When a litigant has an appeal to the Appellate Division of the Superior Court by virtue of Article VI, Section V, paragraph 2 of the Constitution of 1947, this court may certify the cause directly to the trial court and we discern no reason why the same should not be true when, as here, an appeal in lieu of review by prerogative writ lies to the Appellate Division of the Superior Court by virtue of Article VI, Section V, paragraph 4 and the appropriate rules of court promulgated pursuant thereto.
A motion to quash an indictment is addressed to the discretion of the trial court, State v. Then, supra, 114 N.J.L. 413 (Sup. Ct. 1935), but the court's power to quash is not to be exercised except on "the clearest and plainest ground," State v. Davidson, 116 N.J.L. 325, 328 (Sup. Ct. 1936), and an indictment should stand unless it is "palpably defective," State v. Russo, 6 N.J. Super. 250, 254 (App. Div. 1950). "Such judicial discretion cannot be arbitrary, vague or fanciful but rather must be governed by and in accord with established principles of law," State v. Bunk, 4 N.J. 482, 485 (1950). Since the exercise of discretionary authority will not be disturbed on appeal or review unless it has been clearly abused, In re Longo, 124 N.J.L. 176 (E. & A. 1949); State v. Collins, 2 N.J. 406 (1949); State v. Bunk, supra, 4 N.J. 482 (1950), the ultimate question on this appeal is whether the trial court abused its discretion in granting the defendant's motion to dismiss the indictments.
This indictment, filed on June 26, 1951, charges:
"That CHARLES W. WELECK, * * * on or about the second day of March in the year of our Lord one thousand nine hundred and forty-nine, and at divers times thereafter, * * * being then and there a public officer and employee of the Borough of Hillsdale, * * * to wit: Borough Attorney of said Borough, and having, among other things, the duty to render legal services to said Borough to the best of his ability and uninfluenced by motives adverse to the
best interests of said Borough and the duty not to request or accept any gift, gratuity or promise to make any gift under an agreement or understanding that he would act in any particular manner with reference to the affairs of his employer, the said Borough, did wilfully and unlawfully and in violation of his said duty as said Borough Attorney demand, request and receive from one David G. Lubben, a private citizen, a promise that he, the said David G. Lubben would pay to him, the said Charles W. Weleck, the sum of fifteen thousand dollars * * * which sum was to be paid in equal monthly instalments of five hundred dollars each commencing in July 1949, in return for an agreement or understanding that he, the said Charles W. Weleck, would use his influence and office as said Borough Attorney corruptly to influence, exhort and advise the Mayor and Council of the said Borough of Hillsdale to enact a certain ordinance, then pending, to amend the Zoning Ordinance of said Borough * * *; and he, the said Charles W. Weleck, did on two occasions after July 1st, 1949, to wit on or about July 7th, 1949, and on or about July 14th, 1949, and after the passage of said ordinance demand of the said David G. Lubben the sum of five hundred dollars * * * then allegedly overdue, contrary to the common law and the provisions of R.S. 2:103-1 * * *."
It is readily apparent that the indictment undertakes to charge the defendant with misconduct in office, an indictable common law offense and therefore within the purview of R.S. 2:103-1 which provides that "* * * all other offenses of an indictable nature at common law, and not expressly provided for by statute, shall be misdemeanors."
The common law crime of misconduct in office has been well defined in 1 Burdick, Law of Crime (1946), § 272, p. 387:
"By 'misconduct in office,' or 'official misconduct,' is not meant misconduct, criminal or otherwise, which is committed by a person who happens to be a public officer, but which is not connected with his official duties. Such conduct is sometimes called private misconduct to distinguish it from official misconduct. * * *
"Misconduct in office, or 'official misconduct,' means, therefore, any unlawful behavior in relation to official duties by an officer intrusted in any way with the administration of law and justice, or, as otherwise defined, any act or omission in breach of a duty of public concern, by one who has accepted public office."
As stated quite simply in State v. Startup, 39 N.J.L. 423, 425 (Sup. Ct. 1877), and again in State v. McFeeley, 136 N.J.L. 102, 107
(Sup. Ct. 1947), "the violation of a prescribed duty to the public is itself a crime, for which the offender may be indicted at common law." It is essential, therefore, that an indictment for misconduct in office allege both a prescribed duty of the office and facts constituting a breach thereof. The defendant contends that the indictment here is deficient in both respects.
The prescribed duties of an office are nothing more nor less than the duties cast by law on the incumbent of the office. Duties may be imposed by law on the holder of an office in several ways: (1) they may be prescribed by some special or private law, such as official action of a township committee, State v. Hageman, 13 N.J.L. 314, 321 (Sup. Ct. 1833), or a provision of a municipal charter, State v. Startup, supra, 39 N.J.L. 423, 425 (Sup. Ct. 1877); (2) they may be imposed by a general act of the Legislature as in State v. McGovern, 136 N.J.L. 115, 117 (Sup. Ct. 1947), and State v. O'Brien, 136 N.J.L. 118, 127 (Sup. Ct. 1947); or (3) they may arise out of the very nature of the office itself, see State v. Ellenstein, 121 N.J.L. 304, 317-318 (Sup. Ct. 1938); State v. Donovan, 132 N.J.L. 319, 321 (Sup. Ct. 1945); State v. McFeeley, supra, 136 N.J.L. 102, 107-108 (Sup. Ct. 1947); and State v. Lombardo, 18 N.J. Super. 511, 520 (Cty. Ct. 1952). In those instances where the duties are prescribed by some special or private law, the indictment must show the source of the duties, but where the duties are imposed by a general statute or arise out of the very nature of the office, the source of the duty need not be alleged in the indictment for the courts will take judicial notice of such duties, State v. Hageman, ...