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In re Application of A. Donald Bigley

Decided: December 1, 1969.

IN THE MATTER OF THE APPLICATION OF A. DONALD BIGLEY, CAMDEN COUNTY PROSECUTOR, FOR THE APPOINTMENT OF ADDITIONAL ASSISTANT PROSECUTORS AND THE INCURRING OF OTHER EXPENSES. BOARD OF CHOSEN FREEHOLDERS OF CAMDEN COUNTY, APPELLANT


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

Weintraub

Upon notice to the Board of Chosen Freeholders (the Board), the Prosecutor applied to the Assignment Judge for approval of expenditures beyond those provided for in appropriations made by the Board. The Assignment Judge entered an order granting the Prosecutor's request. We certified the Board's appeal before it was heard in the Appellate Division.

The order approved (1) the employment of five additional assistant prosecutors, six additional county investigators, and five additional clerk stenographers; (2) the purchase of electronic equipment; (3) electronics training for two detectives; and (4) the purchase of an automobile.

The Board contends that it has the final word with respect to the needs of the Prosecutor. We think the Legislature placed the decision in the Assignment Judge, subject, of course, to appellate review.

The relevant history begins with Lewis v. Board of Chosen Freeholders of Hudson County, 37 N.J.L. 254 (Sup. Ct. 1874). The court there held the county was only morally obliged to pay expenses incurred by the prosecutor in discharging his duty. In immediate response the same year, the Legislature adopted a statute (it became section 100 of the Criminal Procedure Act in the Revision of 1877 and is herein referred to as the statute of 1874) which read:

"It shall be the duty of the prosecutor of the pleas for each county to use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws; and all necessary expenses incurred thereby, verified to and approved under his hand, by the presiding judge of the oyer and terminer or general quarter sessions of the peace for any county, shall be paid by the board of freeholders thereof."

The effect of this statute was considered in Lindabury v. Board of Chosen Freeholders of Ocean County, 47 N.J.L. 417 (Sup. Ct. 1885). There the prosecutor engaged associate counsel for an important trial. The freeholders paid less than the compensation fixed by the judge's certificate. In

holding the judge's certificate was conclusive, the court described the reach of the 1874 statute and the duty of the board of freeholders in these words (pp. 423-424):

"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, or to have a chemical analysis made, or 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."

And in Irving v. Applegate, 49 N.J.L. 376 (Sup. Ct. 1887), the court repeated that the certificate of the presiding judge was "conclusive," adding that the certificate "has the force of a judgment against the county, which the board of chosen freeholders are legally bound to pay" (p. 379).

In short, the Legislature, confronted with the question whether the freeholders should have the last word with respect to how much money should be provided for the discharge of the prosecutor's duties, decided the ultimate determination should rest with a judicial officer. Perhaps the Legislature feared the independence or effectiveness of the prosecutor could be compromised if local government controlled the resources of his office. Or perhaps the Legislature believed the judicial officer would be more expert in evaluating the ...


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