Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
A background sufficiently capacious to reflect the reasons for the several points debated at the argument of this appeal requires the following precursory explanation.
On January 8, 1954 a complaint was addressed to the Municipal Court of the Town of Morristown that the defendant on January 7, 1954 and again on January 8, 1954 was a disorderly person in that on those occasions he violated
N.J.S. 2 A:170-29-2(b) by obstructing, molesting, or interfering with employees of the local board of health in the pursuit of their duties at the public office of the board. A warrant issued by virtue of which the defendant was apprehended. He posted bail to secure his appearance before the court on January 27, 1954.
On the day last mentioned the resident magistrate of Morristown was unable to preside, and he designated in writing Magistrate Frank A. Headley of the Municipal Court of the nearby Township of Denville temporarily to officiate for him. R.R. 8:13-2.
When the case was called for trial on that day, the county prosecutor acting pursuant to R.R. 8:5 immediately moved for a dismissal of the complaint and explained that a new form of complaint was contemplated. The complaint was thereupon dismissed.
Also on that day the two separate complaints with which we are now concerned were sworn to by the complainant before the clerk of the municipal court. These separate complaints accused the defendant, with some augmentation of the particulars, of the commission of the same disorderly acts on the same dates respectively.
On February 3, 1954 at the inception of the trial of the defendant agreeably on both complaints, Magistrate Headley, who had again been designated to serve temporarily in the Municipal Court of the Town of Morristown, amended each complaint by substituting in each the conjunctive "and" for the disjunctive "or" between the words "molesting" and "interfering" (R.R. 8:12-3), and took the oath of the complainant to each of the complaints as amended. The trial ensued and the defendant was convicted of the commission of the disorderly conduct alleged in both complaints.
The defendant appealed from the convictions to the Morris County Court, where Judge Leap, temporarily assigned, deemed it unnecessary to consider and determine de novo the guilt or innocence of the defendant on the merits. He resolved that Magistrate Headley did not in the circumstances to which we shall subsequently refer possess the
requisite judicial power and authority which he purported to exercise, and that the complaints were invalid; that a lawful conviction could not be rendered thereon; that they should therefore be dismissed and the sequential convictions be reversed. The present appeal is prosecuted on behalf of the State.
It is quite obvious that the representative of the State and probably counsel for the defendant as well desire us to determine the legal propriety of the decision of the County Court to which their respective arguments have particularly been applied, but counsel for the defendant-respondent has in his client's interest embroidered his ...