*1 219, 220; Practice, New Probate Waltzinger, Jersey In that full (1931). one commission will way paid one entire trust service. In the absence of any provision in the statute for of the apportionment on compensation 6% the basis of partial performance of the service in each capacity no other rule will fiduciary justice do equity what we conceive satisfy to be the underlying legislative intention in situations like the present. See Bogert, supra, 398. p.
For stated, the reasons we conclude that one only commis- sion is allowable on the income in Since was question. executors, taken by plaintiffs no further award thereon can be made to them as trustees. Accordingly, judgment Division is Appellate reversed and that of the trial court is reinstated.
For reversal —Chief Justice Weintratjb, and Justices Jacobs, Francis, Proctor, Hall and Schettino —6.
For affirmance —None. JERSEY, EX
THOMAS S. REILLY AND STATE OF NEW REILLY, PLAINTIFFS-APPELLANTS, REL. THOMAS S. OZZARD, v. WILLIAM E. DEFENDANT-RESPONDENT.
Argued September 26, 1960 Decided December 1960. *5 Thiele, Jr. Mr. Richard E.
Mr. J. George Shamy Pincus, & Shamy appellants the cause for (Messrs. argued Thiele, Sheehan, Jr. and Mr. Richard U. Mr. attorneys; Robert W. on the Eallgring, brief). the cause for respondent
Mr. Leon Gerofshy argued & Gerofshy Bowlby, attorneys). (Messrs. for New the cause Jersey
Mr. Walter E. Jones argued amici curiae. Assembly, and New Jersey Senate New cause for Jersey Rosenblatt argued Mr. Samuel curiae amicus Samuel (Mr. Municipal Attorneys, Institute of Jr., brief). on the Eagoort, Mr. Nicholas E. Rosenblatt and *6 of the court was delivered opinion by C. J. The ultimate is whether the question Weintraub, common law dual doctrine of incom prohibiting holding offices bars a member of from patible the State Senate hold of The trial court held ing post township attorney.
the doctrine We certified inapplicable. appeal ensuing motion before the our Division acted it. upon Appellate upon
I. We must first consider constitutional advanced objections defendant. by One that since the Constitution defines for in the eligibility membership IV, I, Legislature (Art. § no par. 2), added, further may be Imbrie v. requirement Marsh, 3 N. J. 578 and an (1950), application of the common law doctrine to a member of the would Legislature have that that, forbidden effect. Another is if the common law doctrine does nonetheless the apply, not Judiciary may act each since house of the is “the Legislature judge elections, returns and qualifications its own members” IV, IV, and has the (Art. par. 2) power expulsion § IV, IV, (Art. par. 3). §
A. The claim that dual officeholding by legislators may be barred under the common law doctrine because the Con stitution specifies for qualifications membership goes beyond questioning application sound, that doctrine. If objection would block as well statutory of the regulation subject. So, for 19:3-5, R. example, S. prohibits certain officeholding by would legislators, be invalid to the extent that it exceeds the express constitutional limitations dual officeholding legislators IV, V, (Art. pars. § 1, 3, and We refer to the 4). because sweeping import reach of the claim very easts doubt upon it. the restraints
An not move beyond individual does law, membership common when he accepts or statutory, to them except He remains Legislature. subject office by insofar as they acceptance legislative preclude performance one for it impair constitutionally qualified to hold another duties. Prohibiting legislator for office neither denies legislative membership eligibility nor frustrates legislator. duties discharge thing; pursue office is one Eligibility right of legislator activities extraneous to the office governmental Hess, J. L. 387 In re 128 N. something (Sup. else. Cf. Ct. 1942).
B. We duty do doubt the and the jurisdiction decide A judicial courts to of this character. controversies determination another that a not hold office legislator does not trench house to authority of each upon judge the elections members or to expel its qualifications of the should be objection the reach noted. Again, them. If it were sound, it would bar well enforcement judicial of a R. statutory restriction, 19:3-5, such as contained in S. since with can be respect to a court's to act there no power distinction between a statutory prohibition common law one.
We think the issue was in Wilentz ex settled rel. Golat v. 129 N. L. 606 & A. Stanger, 1943). J. It is (E. that case with the of a dealt enforcement constitu urged only tional provision. placed Emphasis upon concluding reference to decide “supreme the court's authority constitutional 617). part The case dealt questions” (p. with the constitutional provision powers separation and hence distributed the branches of government among But statement was made. the court did not confine quoted its to constitutional On the con jurisdiction interpretation. there considered and the issue of trary, court decided common law see no in the judicial We room incompatibility. Constitution, article of the VI, Art. I et seq., distinguish § between enforcement of a constitutional and en- provision forcement of a If the Senate were non-organic provision. one, exclusive also would other. judge to deal with both or neither. Judiciary competent
We can find no to the Senate of exclusive au grant to deal with the thority external activities of its members.
isNor it to be implied to assure the Senate the by necessity its members independence need to their discharge assigned role On the government. contrary, it rests appropriately within the jurisdiction of the whole Legislature legislate and within subject, jurisdiction of the Judiciary to enforce such restraints as statutes or the common law may validly prescribe.
C. The constitutional had another facet objections when the matter was before the trial court. As the then were, facts defendant had first been elected to the Senate and there after had accepted post township attorney. Under conventional statement of doctrine, the common law accept ance of the later office vacates the earlier. Kobylarz Mercer, 130 N. J. L. & A. Defendant (E. 1943). contended that his office of senator could become vacant only for causes specified the Constitution and that dual office- violative of the holding common law doctrine was not one *8 of them. defendant Pending appeal, was re-elected senator and hence the post became the earlier township attorney one. doctrine, Thus the if would now applicable, jeopardize rather than municipal post the legislative one. Hence whether the question office of senator could declared vacant left the ease. Defendant nonetheless presses this We see appeal. no barrier to suitable if the remedy dual the evil the officeholding presents common law de nounced. Should the Constitution protect against loss of office, would be legislator barred from is a matter
holding incompatible simple another office. if shape difficulty relief to avoid constitutional Dist., 360, there be 211 Or. Monaghan one. School Cf. 797, 315 P. 2d Ct. (Sup. 1957). D. Next, defendant contends the Constitution itself exhausts and thus of dual subject officeholding by legislators might common law doctrine which otherwise supersedes any have Reference is made several applied. provisions. III,
Article 1 reads: par. powers government among “1. The shall three be divided judicial. person branches, legislative, executive, distinct No persons belonging constituting any or to or one branch shall exercise powers properly belonging others, except to either of the expressly provided in this Constitution.” IV, V, More Article specifically, par. provides: § any Legislature If member of a member “3. shall become any Congress accept position, or shall Federal or State office or profit, thereupon his seat shall become vacant.” And 4: par. person holding any Congress, “4. No member of no Federal position, profit, judge State office or and no court shall Legislature.”
be entitled to a seat in the is not a says township attorney Defendant post "State office or within the position” (emphasis added) of these does not meaning provisions, plaintiff disagree. Defendant the Convention received points specific out be barred from officeunder proposals legislators holding Constitutional Convention local government (3 689, 851, and a ex- monograph upon pp. 898) subject referred provision constitution of Arizona pressly In this 1477). setting, to that effect defendant (Vol. p. *9 the Constitution deals with the urges completely problem and bars further restraint dual officeholding members Legislature.
The most that can said from the record of the be a Convention is that more ban was but sweeping suggested maxim, We see invoke the accepted. no basis to maxim unius est exclusio alterius. The at best expressio is a mere aid to more interpretation. Perhaps accurately, a than assist usually serves to describe result rather to in a it. final is whether reaching question given context an a express with to provision respect portion area reveals a with to the respect decision by implication remainder. The issue is one The answer re- of intention. sides in the common sense situation.
A constitution does not resolve all policy problems. Rather it establishes the with framework of government eternal, specific such restraints as are to be value thought and hence worthy immunity from differences of passing If the sense opinion. of the situation that an af suggests exclusive, as, firmative was meant for specification a statement example, office, of the qualifications for no Marsh, more be added. Imbrie v. 3 N. J. 578 supra, hand, On the other further (1950). example, the fact the Constitution assures absentee voting by military does not personnel deny voice in the Legislature policy whether like question opportunity should be granted civilian N. Gangemi absentees. J. 1 Berry, (1957).
Where, here, the constitutional provision pro in nature, it hibitory surely can not be inferred mechanically that what was not was prohibited thereby affirmatively The decision to guaranteed. prohibit decision simply to foreclose a view as the area dealt with. What contrary is left remains untouched within the jurisdiction of govern determined, Here the ment. Convention and the people to bar dual within agreed, the stated officeholding terms. all They did not ordain that other thereby officeholding by shall constitutionally legislators protected. *10 be added the advanced would proposition prevent itself, and invalidate by Legislature
restrictive action would 19:3-5, above, R. S . referred to to the extent which it exceeds the ban of the constitutional provisions. the aim the of is to disable the Although argument Judiciary law, from the common the assault not thus applying can confined. matter either frozen the Constitution law, or remains be it subject statutory or common.
It is convenient to consider at this the claim point that B. 8. 19 :3-5 exhausts the The statute reads subject. in part: person “No shall hold at the same time more than one of the following president president offices: elector and vice States, senate, United member of the United States member representatives States, the house of of the United member assembly general state, county clerk, senate or of this
register, surrogate, sheriff or coroner.” It has been held that this enactment did dual not authorize the terms its oificeholding beyond interdiction and thus Mercer, erase the common law doctrine. Kobylarz supra L., N. J. There (130 48). involved were the p. office mayor and office. It is military true the statute speaks specifically of member of the and hence there Legislature is more apparent substance to it in reliance upon present case. But again, Legislature merely what prohibited it found weal, to be to the contrary public did perhaps without so to whether regard the offices were incompatible under the common law. We can say the Legislature intended thereby to abolish the common law elsewhere by implication.
II. Hence we reach the issue whether the office of senator and the post township are attorney incompatible under the common law.
A. It is contended the doctrine to “offices” applies only and the post of is not of that character. township attorney
That the doctrine is limited to “offices” was held in er, Wilentz ex rel. Golat v. N. J. L. Stang supra 606). (129 Plaintiff with argues much force that distinctions separating “office” from even “position” if useful “employment,” in other situations, Glasser, are here “A inappropriate. New Jersey Municipal Law What Is a Mystery: ‘Public Office’?,” 6 Rutgers L. Rev. The reason (1952). ableness of a classification depends objective.
Women bemay *11 differentiated from men in matters of health but not with respect to or drunken larceny The driving. is whether
question public evil which the doctrine of was incompatibility designed to meet is less because one of the is posts other than an “office.” The question be in would if a perspective officer of a munici governing claimed pality to serve under own right his direction in another post upon the thesis municipal it was some less an than “office.” thing it Parenthetically be noted may that, doubtless in V, response IV, Article Stanger, pars. § 1, 3, and 4 Constitution present of “office or speak position” (emphasis whereas the added) Constitution of 1844 IV, V, 1 and (Art. pars. 3) spoke “office.” merely of § We need not however the matter pursue since, as we shall presently develop, post township is an “office” attorney within the of the doctrine. purpose
B. is argued from nature of his profession an can an attorney be only independent contractor. Reliance Commissioner, is Ewart placed upon v. 98 F. 2d 649 (3 Cir. The
1938). court held that record before it the attorney there served the an municipalities as independent contractor. The context was liability to federal income taxa tion. The case does hold not the inherent nature of an
a42 an the creation of service is such as
attorney’s preclude an True, general practice office for their rendition. contractor, an but attorney ordinarily independent assume another rela affairs he public private may both as house counsel employed are tionship. Attorneys commonly domain, public although So by corporate employers. an individual matters as an attorney may engaged status. he assume another contractor, may independent yet of many types, legal, needs services professional Government to induce if need is sufficient medical, engineering, rendition, for their the incumbent the creation of post an because services merely contractor independent the Attorney in nature. General Surely are professional are not contractors. county prosecutor independent and the ex Clawson 20 Thompson, hold office. State rel. They J. 689 Ct. 1846). N. (Sup. L. definition of office the context. depends upon Antieau, 13.00, 2 Law Corporation Municipal (1955),
See § de 209. For present purposes, sufficiently at p. as a or authorized or created constitution statute post fined exercise portion governmental for the continuous v. Board Trustees or See authority. Thorp power Educ., 6 498, 507, N. J. vacated as Industrial Schools L. 608 moot, Ct. (1951). U. S. S. Ed. in some township attorney partakes That the post degree seems authority clear. political power governmental *12 the is threaded lawyer throughout government. The role of advice, instru preparation indispensable includes It civil and criminal ments, business prosecution is so The need that the apparent Legislature the public. or authorized creation of legal post directed either And in so has doing it consistently in local government. as an “office.” R. post See S. 40:21-59 characterized A. 40 N. :21-60 S. 40:46-4 and (counties); J. S. R. :46-14 N. J. A. generally); J. A. 40 (municipalities N. S. S. N. J. 40:87-15 S. A. government); 40:81-11 (municipal A. 40:125-1 R. N. J. S. S. 40:145-12 (towns); (boroughs); 40 :158-7 (townships); 40:171-47, S. R. R. S. (villages); 48, 114, 113, has It im (cities). affirmatively posed duty upon municipal attorneys prosecute to specific 39:5-20, amended; violations. See R. S. J.N. A. 51:9 — 11. We see no to
S. reason deem the statutory of the as an “office” be description post to ineffectual. Indeed Weleck, our so cases also describe it. State v. 10 N. J. 355 Glasser, and cases (1952) collected cit. op. Rutgers supra, Rev., at p. L. 522 n. 50. Stanger, not to the supra, contrary. post was held to an there Although “office,” yet court that “the recognized place legal adviser to public may, suitable body provision statutory and endowment with duties and other sovereign appropriate indicia of rank in the service, be public constituted as L., office,” (129 N. J. at p. 615). And the au weight elsewhere holds the thority municipal attorney be an Rhyne, officer Law Municipal 8-2, at 118. (1957), p. § We see deny no reason to post status of an office within the purpose doctrine of incompatible offices. If a of a member governing body attempted simultaneously to serve in the subordinate role of municipal attorney, quite obviously there arise the would evil which- the common law A doctrine was aimed. municipal was hold attorney an officer within the common law doctrine in People ex rel. 16 Cal.
Chapman
Rapsey,
2d
Ct. 1940).
C. We come accordingly the question whether the office of municipal attorney is incompatible with the office of senator. Incompatibility is usually understood to mean a conflict or inconsistency functions of an office. is found where in the established governmental scheme one office is another, subordinate to or its subject super control, vision or the duties clash, inviting incumbent to prefer MacDonald, one to another. obligation Jones v. 33 N. J. 132 Annotation (1960); 1917A L. R. A. 216.
544 attorney- and township There is no between senator conflict of the doctrine. applications in of the conventional any or in executive power The has no legislature judicial, review with, or supervise to interfere administrative sense Nor does an office. incumbent local performance remove from local it to to to appoint have power office.
Plaintiff a would arise when- conflict duties suggests interests which affect the ever is considered legislation may that municipal of the is municipality. assumption a would such, has to duty lobby, duty attorney, with the duty legislate. conflict to a of law. part practice is not
Lobbying Ethics 26 Canons Canon of the Although Professional services an render contemplates attorney “may professional bodies, before or other regarding proposed legis his if he is so it lation” behavior regulates engaged, activity does not follow that such constitutes the practice of law. Not an is for ser infrequently attorney engaged his franchise. He beyond professional lawfully vices may services, they render such not because are part prac law, an tice of but rather because is not restricted attorney So, of his practice profession. although attorney to to address Legislature, practice engaged of law does embrace an exclusive advocate or right bills in the oppose legislative precincts. lobbying Hence a a is not he duty municipal attorney merely because is an attorney.
That has right local or to government to seek its interests is oppose legislation affecting City settled. Committee J. Jersey City Jersey City, 134 N. L. Affairs Carrick, & In re 1946); A. 127 N. J. L. (E. a Ct. Whether (Sup. 1941). municipality under duty matter, is another to do so whether if duty, it exists, attaches office specific government, local we need not inquire. enough say is not in herently role and that lawyer’s present case the *14 ordinance the duties defining of township does attorney not impose that obligation and we know of no statute which does.
We do not a suggest legislator an en may accept gagement for on behalf a pay to introduce municipality Quite or oppose legislative proposals. a obviously legislator, whether or a not could lawyer, be lawfully so engaged interests, any or And public private. if the office of municipal attorney other (or any local were office) specif ically with the charged thus duty to that lobby, obligation would plainly incompatible with the aof duty legislator and would bar dual holding Here, however, offices.
the office of township does attorney not hold that duty hence defendant does not face the prospect as legislator of a passing upon position in advanced a discharge of duty of his other office.
It is here appropriate explore the theme of the dis- opinion be filed in senting this matter. The dissent starts with a discussion of the subject interests conflict of from distinguished duties. a quotes passage conflict of Smith, J., from DeFeo v. N. at (17 pp. 188-189), infra in which successive paragraphs speak of “the possibility interests” conflicting and “the of a possibility conflict the obligations of the positions relation to the public interest.” (Emphasis added) dissent does not sug- DeFeo a gest holds possible interests results in conflict of incompatibility law, offices common and quite clearly DeFeo did not intend to that convey thought. The question involved, was not and the case turned a upon finding a conflict in duties.
The dissent conclude, here does not it, as we read a a possibility of interests results in incompati- conflict of bility offices. We will discuss subject more fully in “D” below. That a conflict possible of interests inheres scene present It, however, is obvious. no by means to the roles of indigenous legislator municipal attorney.
On the it inheres in contrary, local aby officeholding if legislator more pronounced Indeed it is
legislator. to make has the authority a local office holds a legislation, power or oppose to seek decision policy It exists attorney. the municipal repose which does not of legislation direct impact to the respect possible also with if the evident itself, a possibility equally a office local a teacher or or a school municipal attorney legislator board, a etc. Even local planning assessor member of J. A. N. S. municipal attorney, required residence (not interests if the conflict of possible out spells 40:46-14) *15 become pitted against should municipality welfare of On in the or state. occasions county the welfare of others in a munic involving decline to sit case a will judge he that circumstance is not in which lives although ipality a one. legally disqualifying a were If the touch- of interests possibility conflict of decision, attorney of would be municipal
stone the office dissent, other local indistinguishable any from office. said, test, that rather adheres adopt as we have does not but we It is in the to the standard apply. application e., duiieSj standard, a opinions conflict of in this i. part company. case a
The dissent finds a conflict in the duly of municipal a with the in these attorney duly legislator respects: advice rendition of to the draft- (1) legal municipality, (2) legislation, bills ing proposed (3) processing of hall. first, As to the we are unable to detect conflict duty between the with legislate duty advise to the of bills statutes. respect meaning or second, are
As to bills many prepared and per most are redrafted haps routinely by the Division Law Bill a Revision and a Drafting, part legislative agency 13c; N. J. A. c. S. (L. 52:11-18c), at § of individual Doubtless, behest legislators. however, some are prepared by the municipal attorney and we it is agree his do so his duty superiors if so direct. But if he bill, should draw a there is no conflict with the duty of a legislator. The conflict involved in revolves legislation about the issue which a policy bill projects, and to that issxte the authority to decide to advocate or oppose legisla- tion is not within clearly the office of the at- municipal He torney. acts after only the policy decision is made by others; and as the draftsman of the bill he is no more the author of the than is an policy a attorney prepares who last will and testament a plan his disposition client prescribes. Just as the draftsman of a will may deplore wishes, testator’s so a municipal attorney with may disagree the policy decision he is asked to in a embody proposed bill. a
Surely municipal could attorney not refuse to draft lawful document because he merely disliked the de- policy cision his superiors. The is that point the duty to act aas scrivener is not incompatible with a legislator’s duty to pass upon the merits of bill. If the dissent means that a municipal attorney feel some compulsion to prefer his client’s interests when he acts as we legislator, of course agree evident, possibility but it is no more or less so whether the bill is prepared by attorney by some- one else. That interests, conflict is one of and it springs from his connection with the rather mxxnicipality than from to act as duty scrivener a bill, and in kind is no *16 different from the conflict which any local officeholding ox- employment a may induce in legislator. the
Finally dissent finds it is the municipal attorney’s to duty represent his client in the legislative process. It is not obviously the attorney’s to duty introduce a bill; indeed he has no power to attorney do so. And with to respect legislators for or persuading a against bill or at appearing legislative rare hearings (a event in our State), the function is not that of an inherently attorney hence is not the impliedly of that obligation office. It is common- for a place or other local mayor official to assume that role, and we think it plain that such quite official could not be of of adjudged guilty illegal practice the if law he be not Capitol with scene at the State a familiar the lawyer. Anyone em- of public associations knows that interests private (and them. for lobby to non-lawyers select ployees) frequently the that to said, may assigned As we role be already have is, it officer), local to another municipal attorney (or if with office office the incompatible that would then become inherent of not the duty being obligation but legislator, duties of in terms of attorney’s office, incompatibility that be absence of of assignment cannot found office. obligation a con- possibility we are satisfied that here of
Hence in the duties lies in area interests rather than flict of law local If the common prohibited officeholding office. a because conflict legislator possibility interests, a and it is within the authority exists remedy law did enforce it. If however the common ban the courts to alone can cut reach then the subject, Legislature knot; but in those instances the court could nibble duties in which of some incidental conflict of possibility if a should act conflict The court detected. might scene, kind even at the of a periphery particular appears least does we should be that at a slender reed but satisfied indirect well to mindful that an approach exist. may conflict of interests hinder to the basic problem solution, if it to others that a solution suggests forthright hand, it obscure already may responsibility on with the total com- problem branch deal manner. and decisive prehensive
D. his a claim con- rests attack plaintiff Although offices,the us in duties of the before branched argument flict under law a whether the common into the larger question, of a hold local office view possible legislator either respect legislation of interests with affecting conflict welfare. municipality’s his office *17 A answer can not ready be found in the traditional defini- tion of the common law said, doctrine. As we have the doctrine in its has specific applications been to in- applied in compatibility or duties of office. The functions doctrine, is however, also expressed more to embrace vaguely nature, of which, “inconsistency duty, or function from considerations of sound cannot be in one policy, lodged the same one functionary at and the same time.” DeFeo Smith, v. 17 N. J. Does (1955) (emphasis added).
a aof conflict possibility in interests come within the ? concept
This is much clear. The doctrine does not denounce dual such, all “Dual officeholding. not officeholding, the common by forbidden law. is an Incompatibility essen Mercer, tial of the doctrine.” ingredient Kobylarz supra L., J.N. p. 46). (130 a
There is difference between the subject of incompatible subject former, officesand the In conflict interests.
a clash duties inheres in one very relationship office the other and contemplated scheme of by activities, albeit occasions be rare. governmental may will be the consequence nonperformance question- (or able of one or the other of the performance) prescribed hand, duties. On the other a conflict interests virtue by of a dual a will officeholding legislator inevitably as an of the relationship arise incident offices. two arise may upon It what bills are introduced. If depending should, it the incumbent is not put to choice duties. office, the conflict relates to the of one duty
Rather seat. is true if a conflict of that, interests legislative arise, should cast cloud objectivity discretion. Yet exercise of a legislative possibility is not peculiar conflict interests to the case of duality Rather it is of a offieeholding by legislator. part larger inheres the nature of the au- problem confronts all thority and members of that department of This is so because the police power government.
550
whether
every legislator,
so
widely
power range
taxing
inor
public post
in another
in a
calling
he be
private
con-
neither,
have some interest
inevitably
must
some
at
time.
proposal
affected
some
ceivably
by
an actual
the effect of
discussing
We are not
law dealt with that
Plainly
common
conflict of interests.
in a particular
an officer from acting
and forbade
subject
See, for example,
actual conflict.
by
matter permeated
Princeton,
Rather,
N. J. 207 (1960).
v.
33
Griggs
holding
law forbade the
the common
whether
question
a
conflict of interests.
a
future
officebecause of possibility
a
of interests is
said,
conflict
we have
possibility
As
course conflicts of that kind
in a
Of
inevitable
legislator.
distant and
inconsequential
from the
intensity
vary
well be that public
severe. And it may
the immediate and
the total scene the possibility
warrants
from
policy
excising
office-
by
public
conflict
additional
generated
of a
of interests
jurisdictions,
Indeed in some
and employment.
holding
a
to hold local office.
law
forbids
expressly
legislator
organic
Arizona. See
referred above to the constitution of
also
We
Fox,
No barred common law by doctrine. from local office Elsewhere of the In York, is little discussion New subject. there no held there is common law it was expressly incompatibility. Green, v. 58 N. 295 Ryan ex rel. Y. (Ct. App. People 1874); 73 Gilchrist v. N. Y. 535 Murray, ex rel. People (Ct. App.
551
etc.,
York,
Stewart v. Mayor,
New
1878);
City
Div.
44 N.
App.
Y. S.
Div.
A
(App.
1897).
contrary conclusion was
reached
of the
court
majority
General,
in Weza Auditor
N.
Mich.
State have held local office as some now If do. illegality clear, were prior practice it, could not excuse State ex rel. v. L.
Rogers 118 N. J. 547 Taggart, Ct. 1937), (Sup. affirmed 120 N. J. 243 & L. A. but in ascer (E. 1938), a taining sweep of common law doctrine of uncertain limits, we can not what wholly ignore without transpired challenge, especially since the facts were known necessarily and political motivation to question We rarely lacking.
know of no instance in our in State which it was suggested that under a the common law legislator not a may hold local office. This thesis did not occur to plaintiff. And we note in Rogers Taggart, v. in supra, which it was
552
not also
could
a
of the recorder’s court
held
judge
a
“of
court”
any
he was
judge
a
seat because
hold legislative
of the Constitution
IV, V,
par.
within Article
§
office,
a
if non-judicial
local
assumed that
was
apparently
con
At least the
another matter.
character, would be
it would
though
even
advanced
was not
thought
trary
to defend
an alternative response
been
have
appropriately
a municipal
was
his office of recorder
ant’s thesis that
meaning
within the
“court”
one and hence not
rel. Robibero
So, too, in State ex
provision.
constitutional
there
Ct.
1948),
N. J. L.
Hillery,
(Sup.
decided,
an assem
raised,
whether
was
question
but
under the constitutional
mayor
the officeof
may hold
blyman
was made
mention
Taggart,
discussed
no
provision
Eurther,
for attack.
possible
law doctrine as
basis
common
had been under
if a
of a
of interests
conflict
possibility
office which
bar
from
legislator
stood to
emoluments, there would have
affected in
duties or
being,
its
for R.
19:3-5 to restrict officeholding
been no need
S.
And in other
in which
state
legislators.
jurisdictions
statute was held not
bar
from
legislators
constitution or
*20
office,
might
the common law
be
possibility
local
that
v.
ex rel.
Carpenter
People
barrier was not discussed.
116, 5
Common
Tilford,
1885);
8 Colo.
P. 828
Ct.
(Sup.
291
82,
weath
v.
Pa.
and Within the constitutional established. authorizes framework, the architect of structure Legislature no power The has creative government. Judiciary is to prohibitions area. enforce that The court’s function law. Whether a statute or the common by by fashioned wise unwise is a subject upon ban would be further this view, opinion and we venture may properly We only not be understood do so. hold should law involved in officeholding did not bar the dual common case, that the whether it should barred question this and and reposes power responsibility interest public the legislative department. is affirmed. judgment and (dissenting). During Schettino, Jacobs JJ. interest were and widespread
nineteenth conflicts of century, And the twentieth has tolerated. widely although century them, means free of there has fortunately no been been less (cid:127)much toleration much more need recognition reported them. In 1957 a committee curbing it had Assembly to the Senate and General become that, if our democratic is to retain increasingly clear process its must not discharge its officials their vigorous appeal, only also faithfully but must responsibilities enjoy public con- so, fidence that are it made they doing far-reaching with that See thought recommendations mind. Eisenberg, *21 Remedies,” and 13 “Conflicts of Interest Situations Rutgers 666, Rev. 682 our Similarly, L. courts have re- (1959).
554 avoid real stressed that officials should not
cently public only conflicts of interest but interest as well. conflicts of apparent 207, See v. Princeton 33 219 Griggs Borough, N. J. (1960); Rocco, Fanwood 33 404 Aldom Borough (1960); v. N. J. of Roseland, v. 42 N. Borough J. 502 Super. (App. of Div. 1956); Interest Federal 17 and Service Conflict cf. issue, : “where (1960) public confidence is at what people think is true may important be as what true.”
While the case strictly before court is not concerned with much actual be discussed and conflicts potential tween and public it is concerned with private interests, related Rutgers Rev. and well (12 L. 587 (1958)) established common recently law reasserted principle, Smith, this in court DeFeo 183 17 N. J. and (1955) MacDonald, Jones v. 33 N. J. 132 (1960), public Mechem, official hold incompatible offices. See Officers, Public (1890); Throop, 419-431 §§ Office McQuillin, Officers, Public 30-40 (1892); Municipal §§ Antieau, 12.67 Corporations, ed. 1949); (3d Municipal § Law 223 Corporation Conklin, “Plural Office Hold (1955); L. 28 Ore. Rev. ing,” defendant, In DeFeo the (1949). Taxation, member the Atlantic was County Board as a appointed member Board of County Chosen Ereeholders; the court found that offices were incom patible the common applied law principle; its course of had opinion it this to say: charged against or “No misbehavior indiscretions are the defendant. Indeed, complimented existing he is to be on the desire to secure the places apparent his benefit of services more than one. "Set it is position that no man should be in a dual where there exists possibility conflicting interests, despite the admirable manner presently performing which he is his duties. gist point inquiry the test and our must possibility obligations directed conflict positions public in relation to the interest. placed person they might If the duties are such that in one public interests, respective might if disserve the offices or will occasions, legally on conflict even rare it is sufficient to declare them incompatible.” J., pp. 17 N. 188-189.
555 from court cited and quoted approvingly In Jones the DeFeo; could not be lawfully held that the defendant it Taxation of Board of County a member the Somerset both Plainfield; North it of and a councilman the Borough a before the litigant out that pointed Borough might a for man propriety and that it would offend Board County cause; and in answer to the of his to sit in own judgment occur, never it actually that the situation may contention said: say to conflict outlined above is ho answer that duties “It enough may regular
may
it
in fact arise.
is
that
never
statutory
placed
plan.
operation
‘If the duties are such that
of the
they might
public interests,
person
if
or
one
disserve
occasions,
respective
might
is
on
conflict even
rare
offices
will
DeFeo,
supra
legally
incompatible.’
to declare
them
sufficient
Scull,
(17
J.,
p. 189).
supra
(87
L.
N. J.
'Wescott v.
N.
at
See
say
p. 418).
[410],
to
if a conflict
at
Nor
it an answer
that
may
perform
arise,
in
omit
one of the
should
the incumbent
necessity
designed
compatible
The
was
avoid the
roles.
doctrine
incompatibility
question
for
choice.
is immaterial on
‘It
probably
party
will not
to act
not and
undertake
need
necessity
admitted
of such
both offices at
the same
time.
proof
incompatibility
strongest
the two
course
J.,
Jur.,
Officers,
70, p.
N.
Am.
936.”
33
§
offices.’ 42
Public
p.
at
138.
cases
down
earlier New Jersey
striking
Many
Wilentz
found cited in
offices
incompatible
holding
& A.
L.
612
ex
129 N. J.
Stanger,
(E.
Golat v.
rel.
Parkhurst,
v.
9 N. J.
427
Ct.
L.
(Sup.
See State
1943).
Clerk and
States
County Court
United
(Essex
1802)
L.
v.
20 N. J.
Thompson,
ex rel.
State
Clawson
Senator);
and
General
Jersey Attorney
689
Ct. 1846)
(Sup.
(New
Hilton,
L.
v.
80 N. J.
County
Salem
Prosecutor); Lofland
and
Freeholder
County
Ct. 1910)
(Sup.
(Burlington
Scull,
J. L.
87 N.
Wescott v.
County
Roads);
Supervisor
Freeholder
County
Ct. 1915)
(Sup.
(Atlantic
case the
In the
Point).
Stanger
of Sommers
Councilman
Case,
in an
Justice
opinion by
of Errors
Appeals,
Court
L.,
J.N.
(129
was”
certainly
noted that
there
“incompatibility
senator
be counsel to the Director
state
p. 610)
Milk
Control
found that counsel to the Director was
but
office
of the common law
within
contemplation
doctrine.
In
ex
16 Cal.
Chapman
People
Rapsey,
rel.
2d
1950). complaint township, its was under attorney duty municipal before committees of the (1) representing township in matters to which the Legislature pertaining legislation on interest, township advising have an might (2) township taken it with legal positions effect of respect to pending legislation affecting general or municipalities township particular assisting (3) township with formulating policies pursued by respect pending legislation and communica preparation tions to members of the Legislature. complaint also forth the set terms of township ordinance which pro vided its adviser, shall serve as its shall attorney legal it in all and administrative represent judicial proceedings, *24 shall draft or all shall approve legal documents, supervise as such additional be and attorneys may shall engaged, per form such duties as be necessary to may provide legal counsel the the to in governing body township of its administration the As municipal of affairs. Mr. S. Rhyne Charles has his pointed law, out in recent work properly on municipal is, in municipal the addition attorney powers to the and duties ordinarily specified by ordinance, usually called upon “all to services incidental to perform his profession” and bills and required prepare “to them present to the Law 95 legislature.” Rhyne, Municipal (1957).
In an appeared article in the May issue of Jersey New and was Municipalities entitled ‘‘What I Expect the Municipal Attorney,” From Committeeman Township Ehrlich of Scotch Plains noted (at pp. 31-32) that he him to informed keep on all expects bills legislative since the “it is for necessary both elected Officials Municipal and vigilant its in Attorney to ever the seeing acts of best interests of the Municipality are the the legislature him draw further that “I to serve”; expect he stated we wish to forward the Municipality may that the to any bills law.” In its and into approval passage for legislature Salaries, A the Duties Study and Their Attorneys City of the Modern Munic- City Attorney and Responsibilities of with his Messrs. as Compared Compensation (1960), ipalities W. had the and Brice to Rhyne following say Charles S. with functions respect city attorney’s (at p. 24) and the representation the of of his preparation legislation state before the city legislature: Preparation Legislation “(1) of Recommended City Attorney whether The must be ever careful to determine legislative provision which or not there is state constitutional or City
prohibits
his
or controls the form
extent of action which
statutory
proposes.
powers
determine
new
Council
I-Ie must
whether
enabling authority
required.
are
apparent,
Where the need
additional
City Attorney
must set
to the often delicate
the
himself
legislation
adequate
preparing suggested
prove
which will
task
time,
approval
city’s standpoint and,
from
at the same
meet with
legislature.
in the state
Representation
City
Legislature
(2)
Before State
go
Attorney
being
more,
City
upon,
called
more
protection
municipal
capital
in-
in furtherance or
to the state
City
present
Certainly,
Attorney should be
terests.
meetings
any proposed
holding hearings
on
committees
city.
many
legislation
In
which he has drafted
which affects his
legislation
City Attorney
piece
cases,
has seen a recommended
way through
legislative process,
drafting
from
all
governor.
proposed
signing
This function of
bill to the
representative
city
City Attorney, serving
as the
his
before
legislature,
increasingly important
grope
looms
as cities
the state
present-day
enabling
cope successfully
powers
with
for new
problems.”
them
Auburn,
Me.
He extra sought compensation this service but Supreme Judicial Court of Maine held that his came service within “professional the term acts” such as he was bound to perform under the In the opinion ordinance. course of its the court out that pointed act, drafting domain, related eminent a was not to be expected “a layman but was matter for the trained lawyer”; an presentation of such a legislature act to the legislative committee “is committed not to the but ordinarily layman, a while often his own attorney”; layman presents matters to such committee he is rarely employed to present another; those of and that the services which were rendered by nature, were plaintiff con- “plainly professional” cerned the interests of the and were city, duly required A., him council. 91 178. city p.
In his relations with the Legislature, attorney municipal to advance the obligated interests of his municipality alone, whereas the senator’s is for all concern the munici- palities. Oftentimes the individual interests of the munici- palities will differ and one need refer only to his daily newspaper to see how intense the differences become.
Urban communities may support particular policy approach to taxation while rural communities differ- support wholly ent one set of approach; communities may favor a proposed state route while highway another set may vigorously oppose it; and additional illustrations conflicting approaches interests, here, too numerous to list may readily found in the annual bills directly munici- affecting palities. Where senator is not professionally obligated as a he is municipal attorney free unrestrainedly to study and consider opposing municipal viewpoints and thereafter impartially objectively exercise his best judgment his to all discharge high responsibilities the munici- palities and all of the State. people Where, however, *26 560 or, is not free
he is he professionally obligated thus so believe and serious event, impairment will public as it avoided, be result. This should public confidence will law the common be, by application would sympathetic doctrine. be fixed must set and our course must high
Our sights our announced the common judicial true. When predecessors law condi doctrine did so on basis they prevailing and mores. public tions and considerations of policy and conscientiously light should now be applied fairly and in and considerations that light current conditions municipal attorney evident to us the officesof appears declaring are so incompatible. responsibility senator law is a one judicial them within the common doctrine disavowed or remitted others. See properly Inc., Motors, 32 N. v. 358, 403 Henningsen J. Bloomfield Brennan, v. 31 N. Faber J. 353, 361 Smith (1960); (1960); Creswick, Newark v. J. v. 234, Collopy N. 241 (1959); 27 N. J. Eye Infirmary, (1958); and Ear State Culver, N. J. 505 (1957). to reverse.
We vote For Justice and Justices Weintraub, affirmance —Chief and Hall —4. Francis, Pboctor For reversal —Justices Jacobs Schettino —2.