For affirmance -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. For reversal -- None.
[58 NJ Page 276] The Mercer County Prosecutor filed a petition with the Assignment Judge for that County requesting the Assignment Judge to authorize the appointment of additional detectives, investigators, and assistant prosecutors, and to set salaries for existing and new personnel. After a hearing on notice to the Board of Chosen Freeholders (herein
Board), the Assignment Judge entered an order approving the hiring of additional personnel and setting salaries and salary ranges. The County appealed, and we certified the appeal before argument in the Appellate Division.
This case is controlled by In re Bigley, 55 N.J. 53 (1969), where we concluded, upon a full review of the history of N.J.S.A. 2A:158-7, that the Legislature thereby committed to the Assignment Judge the authority to require a board of chosen freeholders to meet the needs of the prosecutor not provided for by the board in its regular or emergency appropriations for the prosecutor's office. As was there pointed out, the Legislature has adhered to that policy for almost 100 years. Speaking of N.J.S.A. 2A:158-7 and its antecedents, we said in Bigley, supra, 55 N.J. at 56:
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 manpower and other demands of the criminal business of the county. Whatever the precise grounds, the legislative determination was clear.
We add that last year there was defeated a bill (A 1126) introduced after Bigley and designed to amend N.J.S.A. 2A:158-7 to give the board of freeholders the final say in the matter.
We pointed out in Bigley that, although the Assignment Judge did not sit in review of the action or inaction of the board of chosen freeholders but rather made an original determination of the prosecutor's needs, it nonetheless was appropriate for the prosecutor to present his case to the freeholders for their initial decision. We note that here the prosecutor followed that course. It was after the Board refused the prosecutor's request that the prosecutor turned to the Assignment Judge, who entered an order upon a finding that
the prosecutor could not meet the imperative duties of his office without the relief which was ordered.
The Board advances several propositions which were not advanced in Bigley and which require brief mention.
As we pointed out in Bigley, the Assignment Judge acts under N.J.S.A. 2A:158-7 as a legislative agent rather than as a judicial officer in deciding upon the needs of the prosecutor. Accepting that premise, the Board contends the statute is unconstitutional because it attempts to delegate legislative power to the judiciary. The reference is to Art. III, para. 1 of the Constitution of 1947, which reads:
The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
The question of course is not whether the judicial branch has on its own sought to claim and exercise a power allocated by the Constitution to the legislative branch. It is the Legislature which has asked the judicial branch to assume the responsibility of passing upon the prosecutor's needs. Nor has the Legislature attempted to delegate a power which is nondelegable. The Legislature need not itself fix an unalterable number of assistant prosecutors or detectives or investigators or other personnel of the prosecutor's office or their salaries. The Legislature may delegate to others the task of deciding the ultimate needs of a prosecutor. The question ...