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Cetrulo v. Byrne

Decided: January 11, 1960.

DON A. CETRULO, PLAINTIFF-APPELLANT,
v.
BRENDAN T. BYRNE, DEPUTY ATTORNEY GENERAL, AND ACTING PROSECUTOR, COUNTY OF ESSEX, ET AL., DEFENDANTS-RESPONDENTS



For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Jacobs, J.

Jacobs

The Law Division, for the reasons expressed in its opinion reported at 55 N.J. Super. 199 (1959), granted the defendants' motions for dismissal and summary judgment. The plaintiff appealed to the Appellate Division and while his appeal was pending there we certified it on our own motion.

On June 28, 1956 the Board of Chosen Freeholders of Essex County adopted a resolution appointing the plaintiff Don A. Cetrulo "to the position of Legal Assistant Prosecutor at the salary range heretofore fixed for said position to commence at the minimum salary of $5,040.00 per annum effective July 16, 1956, to serve until further action of this Board." Mr. Cetrulo served in the Essex County Prosecutor's office under Prosecutor Webb who resigned effective February 16, 1959. He was duly notified by Deputy Attorney General Byrne (who had been designated by Attorney General Furman to assist him in prosecuting the criminal business of the State in Essex County (see N.J.S.A. 52:17 A -4, 5) that his duties as legal assistant prosecutor would be terminated effective February 16, 1959. Thereafter he filed his Law Division complaint in lieu of prerogative writ, alleging that as a veteran he was entitled to the tenure protection afforded by N.J.S.A. 38:16-1 and seeking reinstatement as legal assistant prosecutor with back pay. Cross motions for summary judgment were filed by the plaintiff and the Attorney General and the Board of Freeholders filed a motion to dismiss. After hearing argument and considering the briefs which had been submitted to him, Judge Coolahan concluded that the Board of Freeholders had no power to appoint the plaintiff to the position of legal assistant prosecutor and that if the plaintiff's service in the office of the former prosecutor constituted employment by him under the powers afforded to the prosecutor by N.J.S. 2 A:158-5, it was dependent upon the will of the prosecutor, could not go beyond the term of the former prosecutor, and was therefore fixed by law and beyond the

protection of the Veterans' Tenure Act, N.J.S.A. 38:16-1 et seq. He denied the plaintiff's motion for summary judgment, granted the Attorney General's motion for summary judgment and the Board of Freeholders' motion to dismiss and entered judgment accordingly.

The highly important office of county prosecutor has ancient origins in our State. See State v. Winne, 12 N.J. 152, 164 (1953); Winne v. Bergen County, 21 N.J. 311, 322 (1956); Morss v. Forbes, 24 N.J. 341, 365 (1957). Our first State Constitution contained a reference to the office of Attorney General whose early practice was to prosecute the pleas in all counties either in person or through deputies chosen by him and serving at his pleasure. See Constitution of 1776, Art. 12. In 1812 the Legislature furnished express authorization for the Attorney General's appointment of deputies for those counties "which he may be unable in person to attend." L. 1812, session of Jan. 8, 2 d sitting, p. 23. And in 1822 it provided for the appointment of county prosecutors by the courts and fixed their terms at five years. L. 1822, p. 25. The second Constitution provided that the Attorney General and the county prosecutors shall be appointed by the Governor with the advice and consent of the Senate and shall hold their respective offices for five years (Constitution of 1844, Art. 7, § 2, par. 3); shortly after the adoption of the 1844 Constitution the court, in State ex rel. Clawson v. Thompson, 20 N.J.L. 689, 690 (Sup. Ct. 1846), noted that the Attorney General is the law officer of the State with power to prosecute the criminal pleas in every county while the power of the prosecutor to prosecute the criminal pleas is "confined to the county for which he is appointed." Our third and most recent Constitution, adopted in 1947, provides in Article 7, § 2, par. 1, that county prosecutors shall be appointed by the Governor with the advice and consent of the Senate, that their term of office shall be five years, and that they shall serve until the appointment and qualification of their respective successors.

In State v. Winne, supra, 12 N.J., at page 167, Chief Justice Vanderbilt referred to the prosecutor's dominant position and primary responsibility for the enforcement of the criminal laws in his county and he cited various legislative enactments which have from time to time given him not only express powers to appoint designated assistants but also implied powers to appoint additional personnel when needed for the proper discharge of his duties. Under N.J.S. 2 A:158-5 (formerly R.S. 2:182-5) the prosecutor is directed to "use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws"; and under N.J.S. 2 A:158-7 (formerly R.S. 2:182-7) the necessary expenses incurred by the prosecutor in the detection, arrest, indictment and conviction of offenders against the laws are to be paid by the county treasurer upon approval by a judge of the Superior or County Court and the board of freeholders. See Adamo v. Bergen County, 13 N.J. Misc. 528 (Cir. Ct. 1935).

In Lindabury v. Board of Chosen Freeholders of Ocean, 47 N.J.L. 417 (Sup. Ct. 1885), the Ocean County prosecutor employed the plaintiff to assist him in the preparation of a case for trial. In due course the plaintiff submitted his bill for services which was approved and paid, but only in part, by the board of freeholders. The plaintiff then instituted his action to compel payment of the balance; in sustaining the plaintiff's action the court, through Justice Depue, had this to say with respect to what was then section 100 of the Criminal Procedure Act (see N.J.S. 2 A:158-5, -7):

"The language of the section quoted is quite general. It is made the duty of the prosecutor 'to use all reasonable and lawful diligence for the detection, indictment, and conviction of offenders,' and the payment of 'all necessary expenses incurred thereby' is enjoined upon the board of freeholders. A construction of the statute which would restrict its provisions to the personal efforts of the prosecutor and his personal expenses, without authority to employ other means and instrumentalities to aid him in the discharge of his duty, and to incur expense thereby, would be too narrow to effect

the legislative purpose. On such a construction the prosecutor would not be able to have a diagram prepared, nor to have a chemical analysis made, nor to employ a detective, with any assurance that the expense necessarily incurred thereby would be paid. Such a construction would leave to a prosecutor an excuse for the lax performance of duty, that he had no authority to incur the requisite expense. The plain intent of the statute was to confer upon the prosecutor authority to provide reasonable means to aid him in the performance of his official duties, with a guaranty that the necessary expenses incurred should be paid; and it was left to the court, by the certificate and approval of the presiding judge to determine the reasonableness of the means employed, and the necessity of the expenses incurred." (47 N.J.L., at pages 423-424)

In Murphy v. Bd. of Chosen Freeholders of Bergen Co., 110 N.J.L. 9 (Sup. Ct. 1932), the prosecutor of Bergen County appointed several investigators in 1930; at that time there apparently was no express statutory provision relating to the appointment of investigators (see N.J.S. 2 A:157-1 et seq.) and the court stated that the appointments must therefore have been by "virtue of the power reposed in him" to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws. See N.J.S. 2 A:158-5. In 1931 the investigators were discharged without any charges or hearings and they claimed that this violated the tenure protection afforded to them as exempt firemen. See L. 1911, c. 212; N.J.S.A. 40:47-63. In rejecting this contention the former Supreme Court, through Justice Lloyd, noted that the investigators held no office or position "designated either by statute or municipal ordinance" and that "their services might be temporary or otherwise, dependent upon ...


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