Opinion
Argued September 8, 1952 —
Decided September 30, 1952.
Appeal from Superior Court, Appellate Division.
Mr. David M. Perskie argued the cause for the petitioners-appellants ( Messrs. Perskie and Perskie, attorneys).
Mr. Murray Fredericks argued the cause for the respondent City of Atlantic City.
The judgment is affirmed.
It is said in the opinion of the Appellate Division that the proceeding under R.S. 40:6-1, et seq. "is in no sense against any one, and no conclusion therein is to be reached by the judge or the court." The case of Hoboken v. O'Neill, 74 N.J.L. 57 ( Sup. Ct. 1906) is cited for the proposition that no "conclusion" by the appointing judicial officer is permissible. There, the old Supreme Court said that the statute "does not purport to require any conclusion to be reached on the part of the justice or of any court, but merely directs that he may cause the result which he may himself find by his summary investigation, or which may be reported to him by the experts appointed to prosecute it, to be published in such manner as he may deem proper." This was in response to the suggestion that the statute provides for a proceeding by a justice of the Supreme Court "which reaches no conclusion, and is therefore not judicial in its nature." It was held that "if this be conceded to be accurate," the act was nevertheless constitutional.
Here, there is no occasion to consider the power of the appointing authority in this regard, and the question is accordingly reserved. It is to be observed that in 1931 the statute was supplemented by a provision that "the expert or experts appointed" to prosecute the investigation "shall file the results or report of the investigation" in the office of the clerk of the court "within ten days after the making or finding thereof." L. 1931, c. 361, p. 889; R.S. 40:6-6.
Otherwise, we concur in the opinion of the Appellate Division.
For affirmance — Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD, BURLING and JACOBS — 6.
For reversal — None.