O'Reardon v. Wilson

• Decision Date: 30 November 1926
• Citation: 135 A. 280
• Parties: O'REARDON v. WILSON, Judge.
• Court: New Jersey Supreme Court

135 A. 280

O'REARDON

v. WILSON, Judge.

Supreme Court of New Jersey.

Nov. 30, 1926.

Mandamus by the State, on the relation of Thomas J. O'Reardon, against C. Franklin Wilson, Judge. On return to alternative mandamus. Peremptory writ refused.

See, also, 132 A. 250.

Argued May term, 1926, before GUMMERE, C. J., and TRENCHAHD and MINTURN, JJ.

Either W. Romine, of Morristown, for relator.

Charles A. Rathbun, of Morristown, for respondent.

PER CURIAM. The relator, O'Reardon, was employed by Mr. Bolitho, who then held the office of prosecutor of the pleas of Morris county, to perform certain duties connected with the investigation of alleged violations of the criminal law occurring in that county. These duties were performed by him during the months of March, April, and May, 1925, and he presented bills to Mr. Bolitho for payment for such services and for expenses incurred in their rendition. Mr. Bolitho approved the bills, and they were then submitted to Judge Wilson, of the court of quarter sessions, the present respondent, for his approval, pursuant to the requirement of section 95 of our Criminal Procedure Act. 2 Comp. Stat. 1910, p. 1850.

The latter refused either to approve or disapprove these bills, and the relator then applied to this court for a mandamus to compel Judge Wilson to certify the bills for payment. An alternative writ was thereupon allowed, and Judge Wilson in his return thereto has set up, among other matters, that the employment of the relator by Bolitho during the period in which the alleged services were rendered was without legal warrant, and bases this assertion upon the following facts: Mr. Justice Parker, of the Supreme Court, presiding in the several courts of Morris county, on February 19, 1925, submitted a request in writing to the Attorney General of the state to attend personally, or by such assistant as he might select, in the county of Morris, "for the purpose of prosecuting the criminal business of the state therein, including the investigation of alleged crimes and misdemeanors, attending before the criminal courts and grand juries of said county, preparing indictments for crimes and misdemeanors in such county, and trying the same." Pursuant to this request, the Attorney General designated Mr. Wilfred H. Jayne, Jr., as his assistant, "to perform and carry out the duties mentioned and set forth in said request, in the county of Morris." This designation was made on the 19th of February, 1925, and under the authority conferred by it Mr. Jayne went to Morris county on the next day and took charge of the criminal business of that county. Notwithstanding this designation of Mr. Jayne and his action thereunder, Mr. Bolitho assumed to continue to act as prosecutor of the pleas to some extent, and apparently without objection on Mr. Jayne's part.

In our opinion, the determination of the matter before us depends upon whether or not the legal effect of the action of the Attorney General was to suspend Mr. Bolitho for the time being from the further performance of the duties attached to the office of prosecutor of the pleas of Morris county. For, if that was its effect, Mr. Bolitho could not, by refusing so to regard it and assuming to perform to some extent the duties connected with the office, impose upon the county any liability to pay expenses incurred by him in the unauthorized performance of those duties.

It seems clear from a reading of the provisions of the designation by the Attorney General of Mr. Jayne as his assistant, coupled with the terms of Mr. Justice Parker's request, that the effect of that designation was to suspend Mr. Bolitho from taking any part in the prosecution of the criminal business of the county (luring the period of Mr. Jayne's service...