Wilentz v. Stanger

• Decision Date: 30 December 1942
• Docket Number: Nos. 16, 17.,s. 16, 17.
• Citation: 29 A.2d 413,129 N.J.L. 294
• Parties: WILENTZ, Atty. Gen., ex rel. GOLAT v. STANGER. SAME v. EASTWOOD.
• Court: New Jersey Supreme Court

29 A.2d 413

129 N.J.L. 294

WILENTZ, Atty. Gen., ex rel. GOLAT

v. STANGER.

SAME

v. EASTWOOD.

Nos. 16, 17.

Supreme Court of New Jersey.

Dec. 30, 1942.

Informations in the nature of quo warranto by David T. Wilentz, Attorney General, on the relation of Solomon Golat, a taxpayer, against George H. Stanger and Howard Eastwood, wherein defendants filed demurrers.

Demurrers sustained and writs dismissed.

October term, 1942, before BROGAN, C. J., and PARKER and PORTER, JJ.

Samuel Kaufman, of Newark, for relator.

David T. Wilentz, Atty. Gen. (John F. Bruther, Asst. Atty. Gen., of counsel), for defendants.

Edward J. O'Mara, of Jersey City, for defendant Stanger.

PORTER, Justice.

These cases were argued together and for convenience will be considered in the same way.

Leave was granted by this Court for the filing of informations in the nature of quo warranto against these defendants and the informations were duly filed in the name of the Attorney General on the relation of Solomon Golat, a taxpayer and consumer of milk, to both of which informations the defendants have demurred.

The real question raised by these demurrers is whether or not the defendants have vacated their seats in the Senate of New Jersey by reason of holding, as is alleged, public offices inconsistent and incompatible with the office of Senator.

The defendants, George H. Stanger and Howard Eastwood, hold the offices of Senator from the counties of Cumberland and Burlington, respectively. Under the provisions of the Milk Control Act, N.J.S.A. 4:12A-1 etc., effective July 15, 1942, the director of milk control on January 1st, 1942, appointed Senator Stanger counsel to the director of milk control at a stated salary and he has since served in that capacity. In January of 1942, the Milk Control Board held several public hearings on an appeal from an order of the director at which hearings Senator Eastwood appeared and acted as counsel to the board. It appears that he was not formally appointed as counsel to the board, that his duties were not defined and he received no compensation for his services.

For members of the Legislature to occupy an office, or indeed, a position or an employment in another branch of the state government seems inconsistent and incompatible with their office in the legislative branch. However that may be, we may only pass upon the question here presented, which is whether or not these defendants, or either of them, occupied an "office" under the statute as that term is defined in our cases. In this state we have no statutory definition of the term "office". If either defendant held a position or employment as distinguished from an "office" even though such post be deemed incompatible with the office of Senator, he may not be ousted under these proceedings.

That brings us to the controverted question of the status of these defendants as counsel respectively. Did the post held by either defendant attain the dignity or status of an office ?

Relator relies on Art. 111, Par. 1, of the state constitution, N.J.S.A., which divides the powers of government into three departments; legislative, executive and judicial, and prohibits any person from exercising powers in more than one department. He argues that the milk control department is an executive branch of the government and that a legislator may not be an officer in that department and at the same time hold office as a legislator. He also relies on Art. IV, § S, Par. 3 of the constitution which provides that any person possessing any office of profit under the government of the state shall not be entitled to a seat in the legislature. That therefore upon acceptance of the appointment as counsel to the director and to the milk control board the defendants vacated their seats in the legislature. It will be observed that the relator predicates his entire argument upon the premise that the defendants hold offices as counsel to the director and to the board respectively and that these offices are inconsistent and incompatible with the office of legislator.

The law is well settled that a person may not hold two offices at the same time which are incompatible. This was the rule at common law. The acceptance of the second office has the effect of the vacation of the first office so held. This rule is not disputed by the defendants so no citation of authority is necessary.

Under the Milk Control Act, supra, the board as such was given no authority to engage counsel. If it required counsel it could call upon the Attorney General or such service under N.J.S.A. 52:17-2. It is clear that Senator Eastwood did not have, nor...