The Mount Holly news. [volume] (Mount Holly, Burlington Co., N.J.) 1891-1942, 1918-09-03

tain absolutely no matter or thin
which could IN any way be charge
against him as inefficiency, incapacity
or conduct unbecoming am officer.
This contention appears to me to b
unanswerable. Charge one allege
that the prosecutor had failed to pro
cure any of the necessary parapher
/ MALTA for his work. | am unable t,
find anything in the act of 1911, P. L
1911, p. Ala, which imposes any lega
duty upon the officers created ant
mentioned therein to supply them
selves with equipment. ] do find
however, that by section fifteen, o.
the act, it is provided that it shall bt
the duty of each county superinten
| dent to take charge Of all copies Of
/ the standards adopted by this act
which shall be by the order of the
state superintendent entrusted to his
care. ! think this strengthens the
view above expressed, and that the
act contemplates that the standards
shall be supplied by some one else
than the county superintendent. Be
sides, it is to be gathered from the
record that the entire paraphernalla
which would enable the prosecutor to
perform the duties of the Office was
in the possession of his predecessor in
office, who refused to give it up until
compelled to do SO, pursuant to an
order of this court made on February
10th, 1918. 1t was not before the
ninth or tenth of March, 1918, that
the prosecutors predecessor delivered
to the former the paraphernaha be-
longing to the office. AS has been al
ready observed, the charges against
the prosecutor had been filed with the
board a few days before he became
possessed of the equipment.
The charge that the state depart
ment had found it necessary to send
men into the county OF Burlington
cannot be charged against the prose-
cutor as an act of ineficiency, incapac-
lity or conduct unbecoming an officer.
There was a dispute as who was the
legal county superintendent The
prosecutors predecessor refused to
surrender the Office Section ID of
state superintendent to send his as
sistants into any county where a
county superintendent has not been
appointed, and, from the record, it APP
pears that the state department does
S6Hu lIS OllllCIS lllLO I1lC NSlI1OQS NOQtl-
ties regardless of the fact whether or
not there are county superintendent.
The charge that the state depart
ment had made inspections of scales
and measures used by dealers of Bur-
lington county upon complaint made
to the department, could not properly
weigh against the prosecutor. By
section II of the act of 1911, supra,
weights and measures are only re-
quired to be tested and sealed once in
every two years. The prosecutor was
appointed January, 1917, and prevent
ed from fully performing the duties
of this office until March, 1918, by the
acts of his predecessor, as has already
been sufficiently pointed out.
The second, third and sixth charges
are of similar import and relate to
matters which have been discussed I'M
der the other charges.
The case is utterly barren of any
testimony to support any Of the
changes preferred against the prose-
cutor and of the finding of the board;
and this is sufficient reason to justi-
fly the setting aside Of the resolution.
To me, the action of those members
of the board of freeholders in resort
ing to the method adopted by it to
GUST the prosecutor from the Office to
which his legal title was established,
and subsequently affirmed by the
Court of Errors and Appeals, and
while such Judgment was on review
and undetermined in the latter court,
has every appearance of bid of de-
fiance by them to the solemn mandates
of the courts, and evidently was an
effort on their part to forestall the
action of the Court of Errors and APP
peals, in the event that it affirmed the
title. Such conduct can
not be adequately condemned in words
and calls for satisfactory explana-
ton of this seemingly contumacious
Another ground urged by counsel
of the prosecutor why the resolution
should be set aside is that the resolu-
ton seeks to vacate the Office, whereas
the only power conferred on the board
by the act of 1912 is to remove, dis
charge or reduce In pay or position
the officer complained of and found
guilty.
| find this point we'll taken. No
such power is vested in the board Of
freeholders as it attempts to exercise
by the resolution in question. The of
fee of county superintendent is Great
ed by statute, and the legislature has
board of freeholders to vacate the Of
obstacle put in the way of the prose-
cutor by the board in order to hamper
him in the proper performance of his
duties.
Another point made by counsel of
the prosecutor is chat the action of
the defendant was Illegal in that the
rules adopted by that body were not
and that the resolution is
totally defective because not reciting
the substance of the evidence upon
which the conviction rested"
Having reached the conclusion that
the resolution must be set aside, find
it unnecessary to pass upon The ques
lions raised.
Counsel of defendant offered testi-
mony, as appears from the record, and
argued before me that the prosecutor
had not taken the oath of office pre-
scribed by law, Comp. Stats. p. 3491,
section 1879 until December, 1917,
whereas it was incumbent upon him
to take such oath when he was APP
pointed in January, 1917.
This question cannot be properly
raised in this proceeding for various
reasons. In the first place it was not
charge embraced within the specifi-
cation of charges preferred against
the prosecutor, and was net made a
basis of the finding of the board.
Secondly, the title OF the prosecutor
to the office cannot be questioned in a
collateral proceeding Thirdly, the
title of the prosecutor was res adjudi-
cato at the time the present inquiry
was made
Burtis V. Haines, 102 Att. 355; 103
Id. 1854. "A
The resolution is set aside, with
costs