noting that "[w]hile the separation doctrine is applicable to the Federal Government and to our State Government, it generally has no applicability to our city governments"
How later courts described this case
- noting that "[w]hile the separation doctrine is applicable to the Federal Government and to our State Government, it generally has no applicability to our city governments"
Written by the judges who cited it.
The opinion
Heher, J.
(dissenting). The power invoked by B. 8. 40:48-25 is essentially executive or administrative rather than legislative; and the action taken must meet the test of reasonableness and be characterized by good faith. As much was freely conceded by the defendants on the oral argument and reargument of the cause. There is a suggestion that the inquiry is designed to invade the field covered by the current summary investigation into municipal affairs under R. S. 40:6 — 1, in which the city in resisting a taxpayer’s *127 application under that statute as made in had faith and baseless in fact, by resolution adopted by the local governing body, prayed for an “integrated investigation” of the city’s affairs “ ‘for the entire period beginning with the year 1917,’ ” and was assured by Judge Proctor that the inquiry would “ ‘not be limited as to time, or as to any particular administration.’ ” Tiene v. Jersey City, 13 N. J. 478 (1953). Probes are expensive, and counter-probes may he confusing and obstructive and not in the public interest. A rival inquiry may be an abuse of the statutory power, as tending to subvert the investigative mechanism; and administrative excesses are remediable by the judicial process. The issue, involving as it does the legal existence of the defendant committee, should be determined before the exercise of the statutory power of subpoena, for on that depends the right of testimonial compulsion.
I would reverse the order under review and remand the cause with direction to stay the subpoena until the fundamental issue of factual reasonableness is adjudicated.
Mr. Justice Wacheneeld joins in this dissent.
For affirmance — Chief Justice Vanderbilt, and Justices Oliphant, Burling, Jacobs and Brennan — 5.
For reversal — Justices Heher and Wacheneeld — -2.