On certification to the Law Division of the Superior 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. Wachenfeld, J. (dissenting). Oliphant, J. (dissenting).
The defendant, the County Prosecutor of Bergen County, was indicted on November 28, 1951, on 19 counts charging him with criminal nonfeasance in office. On June 30, 1952 the defendant moved to dismiss the indictment. The trial court made an order on August 18, 1952 granting the motion, which the State seeks to review here.
The first 16 counts follow a single pattern. They identify the defendant as the county prosecutor. They allege that he was charged with the public duty of using all proper, reasonable, effective and lawful means within his power and diligence for the detection, arrest, indictment and conviction of offenders against the law in accordance with R.S. 2:182-5. Specifically, they set forth his duty to suppress all disorderly houses wherein gambling is conducted in the county. They charge that he had sufficient assistance and power to enforce the public duties enjoined on him by law. Then each of the 16 indictments gives a specific place where and the times when gambling was carried on. Each of these indictments concludes by charging not only that the defendant knew of these unlawful activities but that he "unlawfully and wilfully did neglect and omit to perform the said public duties so enjoined upon him and then and there continuously, unlawfully and wilfully did neglect, fail and omit to use and exercise, and cause to be used and exercised, all proper, reasonable, effective and diligent means within his power as Prosecutor of Bergen County, for the detection, arrest, indictment and conviction of a person or persons who kept
and maintained the gambling house as aforesaid, wherein the practice of maintaining a resort to which persons might come for an illegal purpose, namely, for the purpose of playing at dice."
Each of the last three counts of the indictment differs from the first 16 counts only in that, instead of charging gambling at a designated place and times, it asserts that the defendant had received a complaint charging that a member of the Rutherford Police Department (a different person being named in each count) was a corrupt public official, and that the defendant "wilfully did neglect and omit to perform the said public duties so enjoined upon him; and then and there continuously, unlawfully and wilfully did neglect, fail and omit to use and exercise, and cause to be used and exercised, all proper, reasonable, effective and diligent means and all lawful means within his power as Prosecutor of Bergen County for the detection, arrest, indictment and conviction" of each of the officers named.
Among the distinct crimes for which a public official may be indicted at common law are nonfeasance, misfeasance and malfeasance in public office, 1 Burdick, Law of Crime (1946), sec. 272. The distinction between these three separate crimes relates to a familiar classification that not only runs through the law of crime but the law of torts as well. Each of these three crimes has its own distinctive elements, and one is not to be confused with either of the others. The crimes of misfeasance and of malfeasance are mentioned here, not because they are involved in the law, but because in this argument both here and in the trial court decisions dealing with misfeasance and malfeasance in public office were relied upon as if they had a bearing on nonfeasance. Such a course of reasoning about different crimes with diverse ingredients as if they were one and the same inevitably tends to confusion of thought and consequently to error in law.
Misfeasance and malfeasance are not alleged in the indictment. There is no charge of doing something wrongfully or corruptly. On the contrary, the gist of the charge here is failure to act. The basic question before us is whether
nonfeasance in public office is properly alleged in the indictments under our practice.
In judging the sufficiency of the indictments we must consider the official duties of the defendant. As we said in State v. Weleck, 10 N.J. 355, 366 (1952):
"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)."
An attempt is made to identify the powers and duties of the county prosecutor with those of the Attorney-General and then to identify the powers and duties of our Attorney-General with those of the Attorney-General of England. History belies this contention. The Attorney-General of New Jersey could never have exercised the wide powers of the Attorney-General of England in the face of Article III of the Constitutions of 1844 and of 1947, distributing the powers of the government "among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution."
Even under the Constitution of 1776, the powers and duties of the Attorney-General of New Jersey were quite different from those of the Attorney-General of England. Especially is it to be noted that in England the prosecution
of crime was traditionally a private matter. It was not until 1879 that the Office of Director of Public Prosecutors was established by the Prosecution of Offenses Act, 42 and 43 Vict., c. 22 (5 Halsbury's Statutes of England (2 d ed.), 895). Even now under this act and its amendments, 47 and 48 Vict., c. 58, and 8 Edw. 7, c. 3 (5 Halsbury (2 d ed.), 904, 940), the English prosecutor need act only in offenses punishable by death, offenses against the coinage, fraudulent bankruptcies and violations of the election laws, Howard, Criminal Justice in England (1931), 98; Jackson, The Machinery of Justice in England (1940), 111. Here, however, public prosecutors superseded private prosecutors long before the Revolution. As early as 1686 we find a record of the colonial Attorney-General appearing for the king in West New Jersey, The Burlington Court Book (Reed and Miller Ed. 1944), 56. In East New Jersey "the King's Attorney-General prosecuted culprits from minor offenders to murderers," Journal of the Courts of Common Right and Chancery of East New Jersey, 1683-1702 (Edsall Ed. 1937), 3 and passim. In 1703 the Attorney-General was punished for nonfeasance for his failure to prosecute, 1 Keasby, Courts and Lawyers of New Jersey (1912), 377. In 1812 the Attorney-General was authorized by statute "to appoint deputies to prosecute the pleas of the state in such counties as he may not be able to attend in person." Laws of 1812 Pam., 23; Pennington's Laws 1703-1820. In 1822 we find the first mention by name of a prosecutor in each county, L. 1822, p. 25. This act is the precursor of the first clause of R.S. 2:182-5 on which the defendant relies heavily:
"Each prosecutor of the pleas shall be vested with the same powers and subject to the same penalties, within his county, as the attorney general shall by law be vested with or subject to. * * *"
It is important to observe, however, that the numerous civil duties of the Attorney-General have not been assigned to the county prosecutor in each county. His duties are largely, if not exclusively, on the criminal side. It is significant to
note, moreover, the exclusive grant of his power to him on the criminal side:
"The criminal business of the state shall be prosecuted exclusively by the prosecutors of the pleas, except in counties where, for the time being, there may be no prosecutor, or where the prosecutor desires the aid of the attorney general or as otherwise provided by law." R.S. 2:182-4.
See State v. Longo, 136 N.J.L. 589, 592 (E. & A. 1947). In 1898 the second clause of R.S. 2:182-5, which we deem controlling was enacted:
"* * * and he shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." L. 1898, cc. 237, 238, pp. 866-941. (Emphasis added.)
This statute has remained on the books for 55 years without challenge as to its meaning. There are no cases in New Jersey construing it. This clause clearly represents the legislative response to the problems of law enforcement that were reflected in the rapidly increasing population of the State, in the complexities of life in many urban communities and in the need for the concentration of authority in the county for the detection, arrest, indictment and conviction of criminals. Significantly, the county prosecutor of Bergen County is allowed a staff of nine county detectives, N.J.S.A. 2:181-35. They are appointed:
"to assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law." N.J.S.A. 2:181-33. (Emphasis added.)
He also has six county investigators serving at his pleasure and removable by him to
"assist the prosecutor in the detection, apprehension, arrest and conviction of offenders against the law." N.J.S.A. 2:181-41. (Emphasis added.)
In enacting L. 1951, c. 274, relating, as above set forth, to county detectives and county investigators, the Legislature
was careful not to curtail the prosecutor's power to incur expenses in and about his statutory duties:
"Nothing in this act shall be construed to limit the power of any county prosecutor or prosecutor of the pleas, duly conferred upon him by law, to incur expenses in the detection, arrest, indictment and conviction of offenders against the criminal laws of this State." N.J.S.A. 2:181-50. (Emphasis added.)
The statutes reflect not a sporadic intent but a fixed legislative policy to cast on the county prosecutor responsibility for the detection, apprehension, arrest and conviction of criminals in his county. Nor has the Legislature merely imposed duties of vast importance to the public on the county prosecutor. Not only has it seen to it that his office is staffed with assistant prosecutors, county detectives and county investigators. It has given him power not paralleled elsewhere in the county to incur expenses in "the detection, arrest, indictment and conviction of offenders" against the law:
"All necessary expenses incurred by the prosecutor of pleas for each county in the detection, arrest, indictment and conviction of offenders against the laws shall, upon being certified to and approved, under his hand, by a judge of the court of oyer and terminer or a judge of the court of quarter sessions for such county, be paid by the board of chosen freeholders thereof, whenever the same shall be approved by such board. The amount or amounts to be expended shall not exceed the amount fixed by the board of chosen freeholders in its regular or emergency appropriation, unless such expenditure is specifically authorized by order of the supreme court justice presiding in such county." R.S. 2:182-7. (Emphasis added.)
There is no case in the reports of which we are aware where a justice of the former Supreme Court or an assignment judge has failed to approve the expenses of a county prosecutor in the detection, arrest, indictment and conviction of offenders. Clearly the Legislature intended to give him dominant position and the primary responsibility for the enforcement of the criminal laws, not merely by conferring authority on him but by giving him the means of implementing such authority. In contrast, the sheriff, although he
possesses by the common law broad powers of law enforcement in his county, is not given the right to incur expenses in the prosecution of criminals that has been granted to the county prosecutor. The inevitable result of this is that his work as a law enforcement officer has been rendered less effective than that of the county prosecutor, without, however, any diminution of his powers or responsibilities.
Nor is it an answer to the State's position to say that other statutes also cast some of these responsibilities on other public officers such as the local elective officers and the local police. As we said in State v. Weleck, 10 N.J. 355, 368 (1952), supra:
"There is no requirement that the duties of various public officers be mutually exclusive, but rather it is a well recognized fact that certain basic duties are of necessity common to a wide variety of officers. Thus in State v. Donovan, supra, 132 N.J.L. 319 (Sup. Ct. 1945), the court considered that the mayor and other public officials of the City of Bayonne had a common responsibility for the enforcement of the criminal law."
The meaning of the Act of 1898 imposing on the county prosecutor duties in the detection, arrest, indictment and conviction of offenders against the law and the numerous statutes implementing the act cannot be restricted, as the defendant would have us construe it, to the prosecution of matters where complaints have already been filed. The meaning of the quoted words is clear and unmistakable in intent. Obviously they do not mean that the county prosecutor is required personally to detect, arrest, indict and convict, though he may and often does do so. They do mean, however, that he is responsible for seeing that those things are done either by himself or his staff or by the local law enforcement authorities functioning within his county. It is a matter of common knowledge that the local law enforcement authorities from the chanceman on his beat to the chief of police and beyond him to the director of public safety are responsive to the county prosecutor's concept of law enforcement on pain of possible indictment if they do not cooperate with him in enforcing the law. He does not stand alone.
He is in a position to command the cooperation of all the law enforcing authorities in the county. He is amply equipped for the performance of his indispensable task, if law and order are to be maintained in the county and all our rights both of person and of property are to be adequately safeguarded.
It is urged that the statutory obligations imposed on county prosecutors are so onerous that the Legislature could not have intended the policy set forth so clearly and carried forward in successive enactments for 55 years. A wide variety of fancied terrors for county prosecutors are conjured up, if the statute is construed to mean what it plainly says. Any such view can arise only from failing to read the cited clause in the statute as a whole. We have already called attention to the fact that the county prosecutor does not stand alone; others have corresponding responsibilities and he is in a position to enforce their responsibilities in aid of the performance of his own. It is equally apparent that his official responsibility is not an absolute one and that the impossible is not expected of him by the Legislature. The statute merely enjoins him to " use all reasonable and lawful diligence." These are the standards of ordinary life that are being enforced in the courts daily in a wide variety of human relationships. They are likewise the tests imposed by the common law:
"Neglect of Official Duty. Every public officer commits a misdemeanor who wilfully neglects to perform any duty which he is bound either by common law or by statute to perform provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter." Stephen, Digest of the Criminal Law (8 th ed. 1947) art. 145.
The indictment clearly sets forth breaches of official duty by the defendant in his failure to act with respect to matters concerning which he is expressly charged to do so by statute. Though some of the statutes from which the defendant's duties spring are pleaded, they need not be:
"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, supra, 13 N.J.L. 314, 320 (Sup. Ct. 1833); State v. Haddonfield & Camden Turnpike Co., 65 N.J.L. 97, 98 (Sup. Ct. 1900); State v. Middlesex and Somerset Traction Co., 67 N.J.L. 14, 15 (Sup. Ct. 1901); State v. McFeeley, supra, 136 N.J.L. 102, 107-108 (Sup. Ct. 1947); State v. O'Brien, supra, 136 N.J.L. 118, 126-127 (Sup. Ct. 1947)." State v. Weleck, 10 N.J. 355, 366 (1952) supra.
There is no flaw in the indictment on this ground.
Regardless of the statutory duties hereinbefore set forth with respect to the detection, arrest, indictment and conviction of criminals, and regardless of whether or not he had used all reasonable and lawful diligence, the defendant insists that no amount of inaction and neglect as to any or all of his duties, whether proscribed by statute or by the common law, will render him liable to indictment for official misconduct, for the reason that the defendant is a quasi-judicial officer immune, it is claimed, from criminal attack unless corruption on his part is charged in the indictment and proved at the trial. It is to be noted that in some jurisdictions a county prosecutor is not subject to a civil suit for damages at the hands of an aggrieved citizen, Yaselli v. Goff, 12 F.2d 396 (2 Cir., 1926), 56 A.L.R. 1239, affirmed 275 U.S. 503, 48 S. Ct. 155, 72 L. Ed. 395 (1927), Copeland v. Donovan, 124 Misc. 553, 208 N.Y.S. 765 (Cty. Ct. 1925), 27 C.J.S. 409, though that point has not been passed on here. If the defendant's position is sound, then the public and individual citizens alike are without redress in the courts against a county prosecutor who declines to act with respect to any phase of his statutory or common law duties, unless it is alleged and proved that he does so corruptly. If the law were as the defendant contends, an honest but negligent prosecutor would have it within his power to
cripple or nullify the enforcement of the criminal law in his county or to choose at his pleasure the portion of the criminal law he would enforce. He would have, in his county, the suspending power sought so strenuously by the Stuart kings, 2 Holdsworth, History of English Law (3 rd ed. 1923), 440, 4 Idem (1924), 205, 6 Idem 192, 204, 217-225, 241-2, and Maitland, The Constitutional Law of England, 188, 302-306, but denied to them in the English Bill of Rights: "The pretended power of suspending of laws, or the execution of laws, without consent of Parliament, is illegal," 1 Wm. & M. sess. 2, c. 2, sec. ii. There is no difference in principle and there would be no difference in effect except as to territorial range between a Stuart openly defying and preventing the execution of the law and a county prosecutor winking at and tolerating the violation of the laws. Each is utterly inconsistent with the range of law that is the ideal and goal of the common law and equality before the law which is a fundamental tenet of American polity. In his county, as we have seen, the prosecutor is the foremost representative of the executive branch of government in the enforcement of the criminal law. As epitomized in State ex rel. Johnston v. Foster, 32 Kan. 14, 3 P. 534 (Sup. Ct. 1884):
"He is the officer upon whom the state relies for the prosecution of all criminal offenses within his jurisdiction. If he fails or refuses to act, the law is voiceless and powerless. It is paralyzed."
From such a fate, as we have seen, the statutory scheme of law enforcement in each county seeks to protect each community and every citizen, and, fortunately for the general welfare, there is no rule or principle of the common law that frustrates or imperils the statutory intent.
It is further asserted that removal from office by the slow and cumbersome process of constitutional impeachment, Constitution of 1947, Art. VII, Sec. III, pars. 1-3, or suspension by statutory authority, when an assignment judge requests the Attorney-General either personally or by a deputy to attend in any county "for the purpose of prosecuting the criminal business of the state therein," R.S.
2:182-12, or where an assignment judge or the board of chosen freeholders or the prosecutor himself so requests under N.J.S.A. 52:17 A -5, are the sole remedies available to the State for any misconduct of a county prosecutor. There is no basis in law, however, for holding that these alternative constitutional and administrative remedies replace the sanctions of the criminal law, nor has any authority for such a novel proposition been cited to us. State v. Jefferson, 90 N.J.L. 507 (E. & A. 1907) expressly disposes of the question of the priority of impeachment proceedings over criminal prosecutions. The two statutes above referred to do not contemplate the removal of the county prosecutor, but merely his suspension. Indeed, under R.S. 2:182-12 his salary is not suspended for the first three months that the Attorney-General takes over his duties, and the balance of his salary is payable at the termination of the attendance of the Attorney-General. N.J.S.A. 52:17 A -5 is even more favorable to the county prosecutor in providing "that no compensation so allowed [to the Attorney-General] shall affect the salary of the prosecutor or assistant prosecutors." In passing it is significant to note that each of these statutes, in authorizing the Attorney-General or his representative, in the circumstances mentioned, to take over the work of the county prosecutor expressly includes " the investigation of alleged crimes and misdemeanors."
Obviously many of the duties of a county prosecutor involve the exercise of discretion. His discretion, however, is not unregulated or absolute for the statute expressly commands that he " shall use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." The kind of discretion that he must exercise is admirably stated in State ex rel. McKittrick v. Wallach, 353 Mo. 312, 182 S.W. 2 d 313 (Sup. Ct. 1944):
"The duty of a prosecuting officer necessarily requires that he investigate, i.e., inquire into the matter with care and accuracy, that in each case he examine the available evidence, the law and the facts, and the applicability of each to the other; that his duties further require that he intelligently weigh the chances of successful
termination of the prosecution, having always in mind the relative importance to the county he serves of the different prosecutions which he might initiate. Such duties of necessity involve a good faith exercise of the sound discretion of the prosecuting attorney. 'Discretion' in that sense means power or right conferred by law upon the prosecuting officer of acting officially in such circumstances, and upon each separate case, according to the dictates of his own judgment and conscience uncontrolled by the judgment and conscience of any other person. Such discretion must be exercised in accordance with established principles of law, fairly, wisely, and with skill and reason. It includes the right to choose a course of action or non-action, chosen not willfully or in bad faith, but chosen with regard to what is right under the circumstances. * * * Such discretion exercised in good faith authorizes the prosecuting officer to personally determine, in conference and in collaboration with peace officers and liquor enforcement officers, that a certain plan of action or a certain policy of enforcement will be best productive of law enforcement, and will best result in general law observance. That there were such ...