McCran v. Gaul

112 A. 603, 96 N.J.L. 165, 11 Gummere 165, 1921 N.J. LEXIS 160

• Court: Supreme Court of New Jersey
• Decided: February 15, 1921
• Status: Published

Opinions

The opinion of the court was delivered by

Gummere, Chief Justice.

The .attorney-general of this state filed his information against the present appellant, challenging his right to hold the office of a member of the board' of public utilities of the State of New Jersey to which he had been appointed1 by the governor of the state for a term of six years, commencing on the 1st d'ay of May, 1919.

The ground1 of thie challenge is that the present governor removed the appellant from his office on the 1.3th of October, 1930, for neglect of duty and misconduct in office; that the removal was based upon charges filed with the governor by the city of Jersey City (a copy of which was given to the appellant) and after a public hearing, of which he had due notice, and at which he submitted such proofs as he desired in refutation of the charges laid against him; and that he continues to retain the office notwithstanding the governor’s action.

The appellant demurred to the information. The Supreme Court, after, hearing argument, and on. due consideration, overruled the demurrer and directed judgment of ouster against the appellant. From the judgment entered in pursuance of that direction the present appeal is taken.

The action' of the governor, in removing the appellant, was considered by him not only to be justified, but required by section 2 of tire Public Utility statute of 1911 (Pamph. L., p. 374) which enacts that “the governor may remove any. comtaissioner for neglect of duty or misconduct in office, giving him a copy of the charges against him and an opportunity. of being publicly heard' in person or1 by counsel in his own defence upon not less than ten days’ notice.” It was contended by the appellant in the Supreme Court, and is now urged before ns, that this statutory provision affords no justification of the governor’s action, for the reason that it is void because in contravention of article 3 of the constitution of this state which, after dividing the power of government into thlree departments, viz., the legislative, executive and judicial, declares! that “no person or persons belonging to or constituting one of these departments shall exercise any of tiie powers properly belonging to either of the others;” and for the further reason that it attempts to confer upon the governor a power which, under the constitution, is vested solely in the court for the trial of impeachments.

The alleged unconstitutionally of the statute was very vigorously pressed before the Supreme Court, very carefully considered by that tribunal, and very fully discussed by it in the opinion promulgated in the case. An expression of our own views upon the matter would be a, mere repetition of those exploited by the Supreme Court, ,and we therefore content ourselves with saying that we fully concur in those views. To guard against misapprehension, however, we deem it proper to say that the statement in the Supreme Court’s opinion to the effect that a proceeding before the court of impeachments “is 'highly penal in its nature” is one which we do not now either approve or dissent from. It is not a necessary link in the chain of reasoning upon which the court’s conclusion is rested, and it would seem to be out of harmony with our own declaration in tire case of State v. Jefferson, 90 N. J. L. 507.

A further ground upon which the judgment is attacked is thus stated in the brief of appellant’s counsel: “The Supreme Court erred in its determination that the charges given to the appellant accuse him of neglect of duty or misconduct in office.” The pith of this contention is that, while the charges upon which the governor acted allege that, in the matters specified therein, the hoard of which the appellant was a mlember had been guilty of neglect of duty and misconduct in office, they fail to point out that he personally participated in or was responsible for any of the acts or omissions of the board in any of those matters. We do not consider this contention! well founded. The statute does not contemplate the framing of such charges with the legal precision required! in a formal pleading in a court of law or equity. It is enough if they fairly and fully apprise the party against whom they are laid of the acts or omissions whidh are said to constitute official neglect of duty or misconduct oui his part. Where those: acts or omissions are the acts or omissions of the board as a body he may or may not have been responsible for them!. If he was not a member of the board or was absent and took no part in any one of the acts specified in the chlarges, or opposed them, he manifestly cannot be held to responsibility for such act or acts. Whether or not he was a member of the board at the time of the commission of the act or acts complained of is a matter of record, known or readily ascertainable by the person making the charges: but whether, if he was a member, he took no part in the act, or apposed it, or did not concur in any neglect to perform a duty resting upon the board, are matters known ordinarily only to himjself and his fellow members. In such a situation the charges must, we think, be made against the board as a body, or not made at all, for upon what members thle responsibility for those acts or omissions rests can onty be ascertained by an investigation into the conduct of the affairs of the board. Such an investigation can, as a usual rule, only he made by authority of a statute; and that authority was vested in the governor by section 2 of the: Public Utility act. The present appellant was notified by the governor that the charges involved his personal responsibility for the acts and omissions specified in them; and he was afforded an opportunity, of which hie availed himself, to show', if be could, that he took no part in or had opposed those acts and was in no way 'responsible for those omissions.

It is further urged under this ground of reversal that as the acts or omissions specified in the findings of the governor related to matters resting in the discretion of the board, and as there was no indication in those findings that the proofs showed an intentional and willful -abuse of that discretion, the conclusion that thie appellant was guilty of neglect of duty or misconduct is without legal support. This seems to us a non sequitwr. If it be true, as counsel assume (although we doubt the soundness of the assumption so far as it applies to “misconduct” and consider it unwarranted so far as it applies to “neglec-t of duty”) that the neglect of duty or misconduct in office denounced by the statute must be of such a character as to indicate a willful disregard of the obligations imposed upon the members of the board, then the conclusion of the governor that the appellant “lias been guilty of neglect of duty amid! misconduct in office,” coupled with his statement that because thereof he removed the appellant from his office carries with it by necessary implication a finding that the neglect of duty and misconduct in office disclosed by the proofs taken on the hearing were of the character which justified him in Ms action.

Lastly, it is argued that it is apparent, on the face of the information that some of the findings upon, which the governor’s action was rested charge the appellant with responsibility for acts or omissions; ■which were done or occurred prior to the time he became a member of the board; and that therefore the judgment of removal pronounced against him' is unwarranted. The fact is true, but, the conclusion is unsound, and for this reason: several of the findings, were based upon charges of acts and omissions which occurred, during the appellant’s membership in the board. It is to bo presumed, on this record, that those findings were justified by the proofs submitted1 at the hearing before the governor; that thiev supported the conclusion that the appellant was personally responsible, as a member of the board, for those acts and omissions. This being so his removal by tlie governor was legally justifiable; for, if he was responsible for any one or more of such acts or omissions, the governor’s power of removal was complete.

The judgment under review will be affirmed.