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In re Sworn Application of Julia Tiene and Other Freeholders

Decided: November 9, 1953.


On certification to the Superior Court, Appellate Division.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Vanderbilt, C.J. Wachenfeld, J., concurring in result.


On January 28, 1953, 49 freeholders of Jersey City filed with Judge Proctor, the Assignment Judge of the Superior Court for Hudson County, their sworn application for a summary investigation into the affairs of the city under R.S. 40:6-1 which provides:

"If twenty-five freeholders in any municipality or county shall present to any justice of the supreme court an affidavit, sworn to and subscribed by them, setting forth that they are freeholders and have paid taxes on real estate within one year, and that they have cause to believe that the moneys of such municipality or county, are being, or have been unlawfully or corruptly expended, or, if the board of chosen freeholders of any county, or the legislative body of such municipality, by resolution, shall request such justice to investigate the affairs of the municipality or county making such request, such justice may, in his discretion, make a summary investigation into the affairs of such county or municipality. He may, at his discretion, appoint experts to prosecute such investigation, and may cause the results thereof to be published in such manner as he may deem proper."

The application is 27 pages long and to it are attached more than 500 pages of affidavits and exhibits in support of the charges of unlawful or corrupt expenditures made in the application. The application dealt with such varied matters as the so-called "Pier B deal," "the Old Ball Park deal," the "Parking Meter deal," "the car-fleet rental deal," "the Bowl deal," "the Garbage deal," the habitual evasion of public-bidding statutes in making municipal purchases, padded payrolls, and "no-show" jobs.

On January 29, 1953 Judge Proctor made an order to show cause, the return date of which was at the city's request continued to February 26, 1953. On February 24, 1953, two days before the continued return day, the city gave notice of a motion, asking, among other things, that

the court permit the city to take the depositions of the applicants to determine their good faith and financial worth, that the court hold a hearing to determine the probable cost of the investigation and whether such cost would be warranted, that the applicants be required to post a bond to cover the cost of the investigation, that the investigation be deferred until after the oncoming commission government election on May 12, 1953, and that if an investigation should be ordered, it be extended to include the acts of the prior city administration back at least to 1917. This application is consonant with R.S. 40:6-1, supra. On the day before the continued return day the city, by way of defense, adopted a lengthy resolution which in ordinary print would have run to 125 pages, supported merely by a brief and a formal affidavit of the mayor that the matters and things contained in the resolution were true to the best of his knowledge, information and belief.

On February 26, 1953 Judge Proctor heard oral argument at great length, the printed transcript covering 270 pages. On March 27, 1953 he found that the application established the jurisdictional prerequisites presented by R.S. 40:6-1, and in the exercise of his discretion he came to the conclusion that the record before him.

"leads the court to believe that the ends of justice will best be served by a summary investigation into the financial affairs of the City of Jersey City, as such investigation will serve as a proper means of ascertaining the truth of the facts and circumstances of the allegations."

In dealing with the request of the city that if an investigation should be ordered that it go back at least to 1917, he held:

"The investigation will not be limited as to time, or as to any particular administration. The scope of the investigation cannot be determined in advance. It may well appear during the progress of the investigation that an inquiry into the conduct of prior administrations in relation to the financial affairs of the city will be warranted."

and he ordered the posting of a bond for $10,000 by the applicants.

This decision was followed by motions for a rehearing, for a stay pending appeal, and to vacate previous orders, which were denied, and by an application by the expert appointed by the court under the statute to prosecute the investigation to compel the city to make available its financial records, which was granted.

The city appealed to the Appellate Division of the Superior Court from the trial court's order directing an investigation and we have certified the appeal on our own motion.

The city urges various grounds of appeal:

1. At the outset the city argues that the assignment judge was without jurisdiction over the application. Relying on the exception in Art. XI, Sec. IV, par. 10 of the Constitution, it claims that at the time the application was filed, the power to act under the statute was vested solely in the chief justice of the Supreme Court. By par. 10 "all the functions, powers and duties conferred by statute, rules or otherwise" upon the "judges of the courts abolished by this Constitution," (which includes the former Supreme Court) "shall be transferred to and may be exercised by Judges of the Superior Court until otherwise provided by law or rules of the new Supreme Court;

" excepting that such statutory powers not related to the administration of justice as are then vested in any such judicial officers shall, after the Judicial Article of this Constitution takes effect and until otherwise provided by law, be transferred to and exercised by the Chief Justice of the new Supreme Court."

The city claims that the power here exercised by the assignment judge was not related to the administration of justice and therefore under the quoted exception it was vested in the chief justice.

This view ignores the decision of our court construing this very statute, R.S. 40:6-1, supra. In Massett Building Co. v. Bennett, 4 N.J. 53 (1950), we had occasion to consider this statute ...

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