On appeal from the Law Division of the Superior Court, certified on our own motion.
For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan. For reversal -- Justices Heher and Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J.
I. On March 27, 1953 the Honorable Haydn Proctor, assignment judge of the Superior Court in Hudson County, on application of certain freeholders of Jersey City, commenced a summary investigation into the affairs of that municipality pursuant to the provisions of R.S. 40:6-1. In Tiene v. Jersey City, 13 N.J. 478 (1953), we upheld his order directing the investigation. In accordance with the provisions of R.S. 40:6-2, as amended L. 1953, c. 37, Judge Proctor appointed Mr. Samuel A. Larner as the expert to conduct the investigation, and on May 13, 1953 he appointed Mr. Joseph M. Nolan as attorney to assist Mr. Larner. At the same time he signed an order directing the Clerk of the Superior Court to issue subpoena to such persons as the expert should designate during the course of the investigation.
On January 22, 1954 each of the four defendants was served with one or more subpoenas duces tecum commanding him to appear before the expert on January 27, 1954 in connection with the pending investigation of the affairs of the City of Jersey City. All the subpoenas were issued over the signatures of "I. Grant Scott, Clerk," and "Joseph M. Nolan, attorney for and of counsel with Samuel Larner." Mr. Nolan had signed both names to the subpoenas in accordance with the long established practice in this State. Prior to the return date of the subpoenas, Bernard F. Kenny, one of the defendants, moved to quash the subpoenas served upon him, and as a result his appearance before the expert was adjourned
by stipulation until the motion could be disposed of by the court. The remaining defendants, Mascolo, Masumiam and Comparetto, appeared on the return date, but refused to be sworn or to testify. At the same time they also served a motion to quash the subpoenas served upon them. After hearing argument on their motion Judge Proctor denied the motions of Mascolo, Masumiam and Comparetto to quash the subpoenas and on February 23, 1954 signed an order to that effect, and in his order he directed them to appear on March 2, 1954 before the expert in compliance with the subpoenas. These appearances were adjourned until the court disposed of the defendant Kenny's motion to quash his subpoenas. On March 11, 1954 Judge Proctor denied Kenny's motion and ordered him to appear before the expert on March 23, 1954 in compliance with the subpoenas previously served upon him.
On March 12, 1954 all four defendants filed notices of appeal from these orders to the Appellate Division of the Superior Court. Subsequently they also sought stays from the Appellate Division pending the appeals. Counsel agreed in writing that the date of appearance for all defendants before the expert would be adjourned until March 30, 1954, with the understanding that if the motion for stays were in the meantime denied by the Appellate Division the defendants would appear before the expert on that date. On March 29, 1954 the Appellate Division denied the motions for stays and subsequently the appeals were dismissed by the Appellate Division, apparently on the ground that the orders appealed from were interlocutory and the appeals were therefore prematurely brought.
On March 30, 1954 the four witnesses failed to present themselves before the expert. At the same time they caused to be delivered to him letters written by them advising that they refused to comply with the order of the court until the appeals from the orders of February 23 and March 11 were decided by the Appellate Division. Thereupon the expert reported these facts to Judge Proctor and applied for the issuance of bench warrants to compel these witnesses to appear
and testify. Judge Proctor signed the warrants, but prior to the service of the warrants on the defendants they voluntarily appeared before the judge, all except Kenny being represented by counsel. Each took the stand and was questioned as to his failure to appear before the expert, and as to his intentions to testify. Each admitted that in refusing to comply with the subpoenas and court order hereinbefore mentioned to appear before the expert he had acted contrary to his attorney's advice, but indicated his willingness to appear and testify before the expert in the future. Each of the defendants was informed in open court that he was charged with contempt for failure to comply with the subpoenas and with failure to obey the court order to appear and produce books, and the judge notified each to appear on April 6, 1954 for a hearing of the contempt charge. On April 1, 1954 an order was signed by Judge Proctor directing each of the four defendants to show cause before the court on April 6, 1954 why he should not be adjudged guilty of contempt of court for his failure to obey his subpoenas and the order of the court. A copy of that order to show cause was served upon each defendant, and pursuant thereto all four defendants appeared with counsel in court on April 6, 1954 before Judge Proctor. Since the alleged contempt involved orders signed by him, Judge Proctor refused to hear the matter and assigned it to Judge McGeehan, R.R. 4:87-2(e).
After several adjournments the four defendants appeared before Judge McGeehan on June 10, 1954 with their counsel. The judge read the order to show cause in open court, each defendant signified that he understood fully the nature of the charge and of the proceedings, and each pleaded not guilty. Mr. Nolan, the attorney appointed to prosecute the contempt, called as witnesses the process server, who testified that he had served subpoenas upon each of the defendants, and the attorney for Jersey City, who testified as to the nonappearance of the defendants before the expert on March 30, 1954. The prosecutor introduced into evidence the original subpoenas, the orders of Judge Proctor dated February 23 and March 11, alleged to be contemned, and the letters
written by the defendants to the expert advising him of their decision not to appear before him on March 30. On the defendants' case all four took the stand and admitted their failure to comply with the court orders directing their appearance before the expert. Each admitted that in doing so he had acted contrary to the advice of counsel, who had ...