Schulman, J.c.c. (temporarily assigned).
Defendant was indicted by the Hudson County grand jury for presumably nonfeasance in office in violation of N.J.S. 2A:85-1. He now moves to strike said indictment by notice of motion, brief and affidavits attached thereto on the ground that he is not a public officer but an independent contractor.
The fact disclosed at the hearing which was not controverted by the State was that defendant was retained by the City of Jersey City to conduct an independent annual audit for the year of 1963, as well as for two years prior thereto. Accompanying the moving papers was a certified copy of the resolution of the governing body of Jersey City appointing him to examine the accounts of certain designated departments of said city for the year 1962. Defendant by affidavit alleged the same services for the years 1961 and 1963.
Defendant at this time does not argue the legal sufficiency of the indictment of which the court has grave doubts, but argues instead that defendant is not an "officer" of the municipality. The indictment charges defendant with being the "City Auditor" and willfully and unlawfully neglecting his duties as such to audit and investigate the inaccurate and untrue records and receipts of one Bernard Rosengard, Acting
City Clerk and Assistant Municipal Clerk of the City of Jersey City.
The authority for appointing an auditor for a municipality is contained in N.J.S. 40A:5-4, which is as follows:
" 40A:5-4. Annual audit required.
The governing body of every local unit shall cause an annual audit of its books, accounts and financial transactions to be made and completed within 5 months after the close of its fiscal year and for that purpose shall employ a registered municipal accountant of New Jersey. Nothing in this chapter shall prohibit the making of such audit by the director upon the request of the governing body."
Is a registered municipal accountant employed by the city a public officer under the saving clause section of N.J.S. 2A:85-1? Defendant does not argue that he should have been indicted under N.J.S. 2A:135-1, but concedes in his brief, for the purpose of this argument, that an officer is indictable for nonfeasance under N.J.S. 2A:85-1. Without deciding that fact, or even the legal sufficiency of the indictment, the court is constrained to decide this motion within the scope argued by defendant, namely, that he is not a public officer and cannot be indicted as such.
The cases in New Jersey dealing with public officers are many and varied. The first systematic collection of the cases was made by Professor Glasser in his article entitled, "A New Jersey Municipal Law Mystery; What is a 'Public Office'?" 6 Rutgers L. Rev. 503 (1952). The historical development of who is a public officer commences with the landmark case of City of Hoboken v. Gear, 27 N.J.L. 265 (Sup. Ct. 1831), wherein the test of governmentality was developed. This was followed by another landmark case, Fredricks v. Board of Health, 82 N.J.L. 200 (Sup. Ct. 1912), wherein the definition of the term "office" was stated as follows:
"An office is a place in a governmental system created or recognized by the law of the state which either directly or by delegated authority assigns to the incumbent thereof the continuous performance ...