Massett Bldg. Co. v. Bennett

• Decision Date: 14 February 1950
• Docket Number: No. A--76,A--76
• Citation: 4 N.J. 53,71 A.2d 327
• Parties: MASSETT BLDG. CO. et al. v. BENNETT et al.
• Court: New Jersey Supreme Court

Page 53

4 N.J. 53

71 A.2d 327

MASSETT BLDG. CO. et al. v. BENNETT et al.

No. A--76.

Supreme Court of New Jersey.

Argued Jan. 23, 1950.

Decided Feb. 14, 1950.

Murray Fredericks, Atlantic City, argued the cause for the appellants.

Henry F. Schenk, Deputy Attorney General, argued the cause for the respondents (Theodore D. Parsons, Attorney General).

The opinion of the court was delivered by

VANDERBILT, C.J.

In April, 1948 thirty-four taxpayers of Atlantic City presented their affidavit under R.S. 40:6--1, N.J.S.A., to the Honorable Howard Eastwood, then a justice of the former Supreme Court, who in May entered an order directing a summary investigation into the affairs of the city. Later he entered an order appointing Harold W. Bennett of the Camden bar, and Edmund D. Bowman, a certified public accountant of New Jersey, as experts, under the statute, to prosecute the investigation. On September 15, 1948, the Honorable Frank T. Lloyd, Jr. was designated as Assignment Judge of the Law Division of the Superior Court in Atlantic County and by virtue of R.S. 1:1--22(i), N.J.S.A., took over the authority theretofore exercised by Judge Eastwood.

In July, 1948 the experts under the terms of the statute began to check the city records, interview witnesses, and to obtain date from their books and in December, 1948 they began to conduct public hearings at which Mr. Bennett presided at Judge Lloyd's order. These hearings have been much interrupted by litigation in both the Federal and state courts.

On October 5, 1949 the twenty-three plaintiffs herein, who are either mentioned in the taxpayers' affidavit which instituted the investigation or who have been subpoenaed or threatened with subpoena as witnesses in the investigation, filed their complaint in the Chancery Division against Judge Lloyd, the two experts and three lawyers who had been appointed as their legal assistants. The plaintiffs allege in their complaint that the actions and acts of the experts were illegal and oppressive, in that they have examined plaintiffs' private books, papers and records, extracted data therefrom, and made such information public, thereby violating the plaintiffs' rights of property and privacy; required plaintiffs to answer questions under threat of contempt; insisted on the divulgence of transactions in no way connected with the affairs of Atlantic City; and ordered one of the plaintiffs to testify to 'all transactions which the experts deem pertinent, material and relevant to their investigation under the charges involving Convention Hall.' In general the plaintiffs contend that the investigation and the hearings are not only unconstitutional but also in and of themselves illegal and violative of the plaintiffs' rights. They seek injunctive relief restraining the defendants from enforcing the provisions of R.S. 40:6--1 et seq., N.J.S.A., and also the aid of the Chancery Division to order the defendants to return to the plaintiffs all data, records and information that may have been obtained from said plaintiffs either with or without the aid of subpoena. The defendants filed an answer admitting some and denying others of the allegations of the complaint and raising the separate defenses of laches, stare decisis and the statute of limitations. Defendants then moved for summary judgment on the pleadings, which was granted. From this judgment the plaintiffs appealed to the Appellate Division and the defendants petitioned this court for certification, which was allowed.

I. The plaintiffs contend that the act in question charges a judge with the performance of nonjudicial duties in violation of Article III of the Constitution of 1947, N.J.S.A., distributing the powers of government among three distinct branches--the legislative, executive and judicial--and providing that '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 provisions of this Article may be traced to Article III of the Constitution of 1844, the division of powers now being 'among three distinct branches' instead of 'into three distinct departments.' The new language would seem to be, if anything, broader than the old. As we observed in Mulhearn v. Federal Shipbuilding and Dry Dock Company, 2 N.J. 356, 363, 66 A.2d 726 (1949), the doctrine of separation of powers is not peculiar to New Jersey; it exists in one form or another in almost every American constitution; and it has nowhere been construed as creating three mutually exclusive water-tight compartments. To do so would render government unworkable and the slave of a doctrine that has for its beneficial purpose the prevention of despotism that inevitably results from the concentration of all the powers of government in one person or in one organ of government. So in almost every state we find seeming exceptions to the doctrine from the earliest times to the present day, Baldwin, The American Judiciary, Chapter II (1914), some of which are upheld, others of which have been declared unconstitutional. While no rule of thumb will cover all the cases, in general it may be said that no deviation from the constitutional provisions incorporating the doctrine of the separation of powers will be tolerated which impairs the essential integrity of one of the great branches of government. Thus one of the earliest cases to come before the Supreme Court of the United States involved a statute casting on the Federal circuit courts the duty of passing on the applications of invalid Revolutionary soldiers for provisions, subject first to the consideration and suspension of the Secretary of War and then to the revision of Congress. Such executive and legislative action being incompatible with the unfettered exercise of judicial power, the court declined to act, Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436 (1792).

The case chiefly relied on by the plaintiffs, In re Richardson, 247 N.Y. 401, 160 N.E. 655, 659 (1928), involves the same principle. There the statute cast on a justice of the Supreme Court of New York the mandatory duty, at the direction of the governor of making an investigation of charges against a public official and to report the evidence with his findings and conclusions to the governor. The proceedings took the justice away from his judicial work for months. Chief Judge Cardozo, speaking for the Court of Appeals, held that 'The range of our decision will not be misapprehended. We deny the power of the Legislature to charge a justice of the Supreme Court with the duties of a prosecutor in aid of the Executive,' in violation of the provisions of the New York constitution precluding such judges from holding any other public office or trust, except that they shall be eligible to serve as members of a constitutional convention. The New York statute is subject to the fundamental vice that it subjects a justice to the direction and supervision of another branch of the government as in Hayburn's Case, in violation of the principle of judicial independence.

The distinctions between the In re Richardson case and the case at bar are obvious. There the statute cast a mandatory duty on the justice; here the judge 'may' act 'in his discretion.' There the justice acted under an order from the governor directing him to investigate, and he was required to report to the governor; here, if he does see fit to act, he does not report to anyone. He 'may cause the results (of such investigation) to be published in such manner as he may deem proper,' R.S. 40:6--1, N.J.S.A. There the proceedings were directed to the definite end of an executive removal of a local officer; here the statute had no such definite goal. The most that may happen at the end of the investigation, as such, is publication of the results. There the judicial action infringed on a specific constitutional prohibition; here it is still to be demonstrated that an investigation into the affairs of local government is not judicial.

The power of investigation cannot be assigned to any one of the branches of government exclusively. The Legislature has inherent power to conduct investigations as the basis for future legislation. By Article V, Section IV, paragraph 5, of the Constitution the Governor is empowered to 'cause an investigation to be made of the conduct in office of any officer or employee who receives his compensation from the State of New Jersey, except a member, officer or employee of the Legislature or an officer elected by the Senate and General Assembly in joint meeting, or a judicial officer.' Even more familiar are the investigations made by many of the administrative agencies, the state police, the...