Ahto v. Weaver

• Decision Date: 04 March 1963
• Docket Number: No. A--79,A--79
• Citation: Ahto v. Weaver, 39 N.J. 418, 189 A.2d 27 (N.J. 1963)
• Parties: George AHTO, Plaintiff-Appellant, v. Charles WEAVER and Herman Klein, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 418

39 N.J. 418

189 A.2d 27

George AHTO, Plaintiff-Appellant, v.Charles WEAVER and Herman Klein, Defendants-Respondents.

No. A--79.

Supreme Court of New Jersey.

Argued Nov. 20, 1961.

Reargued Jan. 22, 1963.

Decided March 4, 1963.

Theodore W. Trautwein, Hackensack, for plaintiff-appellant.

Joseph V. Cullum, Union City, for defendants-respondents.

The opinion of the court was delivered by

HALL, J.

At issue in this litigation is whether the defendants Weaver and Klein hold incompatible public offices in violation of the common law prohibition.The plaintiff, a taxpayer, sought their ouster from all of the offices they respectively occupy 'or such other judgment as may be equitable and just.'The Law Division, on cross-motions for summary judgment, decided for defendants.The ensuing appeal reaches us on our grant of certification, applied for while the matter was awaiting hearing in the Appellate Division. R.R. 1:10--1A.

When the case was first argued, we were advised of proposed legislation then pending which would substantially modify the common law rule.We therefore deferred our decision to await the outcome.The bill received legislative approval on May 7, 1962, but was returned by the Governor on November 19, 1962 for reconsideration and recommended amendment.It ultimately became L.1962, c. 173, approved December 3, 1962 and effective immediately.We thereafter called for supplemental briefs and reargument so that the matter might be determined with due regard to the new legislation since it is expressly made applicable to incumbents of affected offices and positions.Sec. 4(b).

The test of the common law rule that one may not hold incompatible offices is, as the rule itself, an ancient one.The classic statement in this state is found in State ex rel. Clawson v. Thompson, 20 N.J.L. 689(Sup.Ct.1846):

'* * * Where there is no express (constitutional or statutory) provision, the true test is, whether the two offices are incompatible in their natures, in the rights, duties, or obligations connected with or flowing out of them.Offices, says Bacon, are incompatible or inconsistent, when they cannot be executed by the same person; or when they cannot be executed with care, and ability; or where one is subordinate to, or interferes with another, Bac.Abr.Tit. 'Office' K.'

An accurate modern expression is set forth in Reilly v. Ozzard, 33 N.J. 529, 166 A.2d 360(1960):

'* * * Incompatibility is usually understood to mean a conflict or inconsistency in the functions of an office.It is found where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another.'(at p. 543, 166 A.2d, at p. 367).

The reason behind the prohibition is succinctly summarized in Jones v. MacDonald, 33 N.J. 132, 162 A.2d 817(1960)'Public policy demands that an office holder discharge his duties with undivided loyalty.The doctrine of incompatibility is intended to assure performance of that quality.Its applicability does not turn upon the integrity of the person concerned or his individual capacity to achieve impartiality, for inquiries of that kind would be too subtle to be rewarding.The doctrine applies inexorably if the offices come within it, no matter how worthy the officer's purpose or extraordinary his talent.DeFeo v. Smith, 17 N.J. 183, 188, 110 A.2d 553(1955).'(33 N.J., at p. 135, 162 A.2d, at p. 818).

L.1962, c. 173 provides:

'1.It shall be lawful for a person to hold simultaneously an elective county office and an elective municipal office.

2.It shall be lawful for a member of the Legislature of the State to hold simultaneously an elective or appointive office or position in county or municipal government.

3.Nothing contained in this act shall be deemed to prevent the incumbent of any office from abstaining from voting in any matter in which he believes he has a conflict of duty or of interest, nor to prevent a challenge of a right to vote on that account under the principles of the common law or any statute.

4.(a) Nothing herein contained shall be deemed to repeal or supersede any statute prohibiting the dual holding of offices or positions.

(c) For the purposes of this act the term 'elective office' shall mean an office to which an incumbent is elected by the vote of the general electorate.* * *'

What the legislation does--and it is unquestionably within the power of the Legislature, McDonough v. Roach, 35 N.J. 153, 157, 171 A.2d 307(1961),--is to allow such dual office holding as was previously prohibited by reason of incompatibility in the two situations specified in sections 1and2, unless forbidden by prior statute, e.g., R.S. 19:3--5, 40:41--20, N.J.S.A.(These statutes prohibit specific dual office holding absolutely, whether or not there is incompatability in fact.)The common law rule remains in force in all other cases.

The provisions of section 3 evidence a further legislative intent which should be noted.As has been said, the common law doctrine applied inexorably whenever there was incompatibility by reason of the established governmental scheme.In order to assure absolute protection of the public interest, only one of the incompatible offices could be held, even though a specific instance of conflict of duty might in fact never, or only infrequently, arise.SeeKobylarz v. Mercer, 130 N.J.L. 44, 47, 31 A.2d 208(E. & A.1943);Jones v. MacDonald, supra(33 N.J., at p. 138, 162 A.2d, at p. 820);McDonough v. Roach, supra(35 N.J., at p. 157, 171 A.2d, at p. 309).Now, in the situations permitted by sections 1and2 of the statute, section 3 indicates that such protection is to be afforded, at least to the extent of instances where voting is involved in either one of the posts, by invalidation of particular action as to which the office holder has a conflict of duty or interest and does not refrain from participation, where that result is called for 'under the principles of the common law or any statute.'Cf.Grimes v. Miller, 113 N.J.L. 553, 175 A. 152(Sup.Ct.1934);Griggs v. Borough of Princeton, 33 N.J. 207, 162 A.2d 862(1960).

The undisputed facts of the matter at bar follow: Mr. Weaver, a lawyer, was elected in 1959 as a member of the governing body of the Township of North Bergen in Hudson County for a term of four years.The municipality is governed by the commission form.At the organization meeting following his election, he was assigned a department and selected as Mayor.The service is part-time in this community and the Mayor's annual salary $6000.

Since July 1, 1960he has also functioned as a Legal Assistant to the Hudson County Counsel by appointment of the Board of Freeholders without specification of term.This service is likewise part-time and the salary is also $6000.Although the duties of the County Counsel are not detailed by statute, he is inherently the attorney and legal adviser of the Board of Freeholders and the county government generally.Under the general authority of R.S. 40:21--3, N.J.S.A., the Board of Freeholders may appoint those assistants and employees needed by the County Counsel to carry out his functions.According to the proofs before the trial judge, there are three Assistant County Counsel and 12 Legal Assistants in the Hudson County Counsel's office.The varied categories of work are apportioned among this staff, with the several Assistant County Counsel being the superiors of the Legal Assistants and in turn responsible to the County Counsel himself.Mr. Weaver's assigned tasks since his appointment have involved the handling of claims for board and maintenance of inmates of county institutions and periodic tours of duty at the office of the County Counsel to answer such questions and requests for legal advice as might be posed by any county official or agency.He has an understanding with the County Counsel and the Assistant in charge of administration of the office that he is not to handle any matter affecting North Bergen.

Mr. Klein is Mayor and a member of the governing body of the Town of Guttenberg in Hudson County and a Boulevard Commissioner of that county.Again both services are part-time.The first carries a nominal salary of $600 per year and the second, annual compensation at the rate of $4500.Both posts are elective, the mayorality by the local electorate and the commissionership by the voters of the county at large.The Boulevard Commission is a county body which supersedes and exclusively exercises the former authority of the Board of Freeholders, at least in specified operational and control aspects, over those county roads constructed pursuant to L.1888, c. 274(saved from repeal by R.S. 27:17--1, N.J.S.A.; N.J.S.A. Acts Saved from Repeal 27:17--1(1), et seq.).R.S. 27:17--2 to 20 inc. N.J.S.A. See Nolan v. Fitzpatrick, 9 N.J. 477, 89 A.2d 13(1952);State of New Jersey, Department of Civil Service v. Clark, 15 N.J. 334, 104 A.2d 685(1954).(Mr. Klein is also Superintendent of Schools of North Bergen.The charge made in the complaint that this was a further incompatible office was withdrawn before hearing in the trial court.)

Plaintiff agrees that the act does immunize Mr. Klein because his offices are both elective.It is contended, however, that the act is unconstitutional ¹ and therefore his right to continue in both is still to be decided by reference to the common law doctrine.Mr. Weaver, on the other hand, concedes that the statute does not abrogate the common law rule as to him since his county post is appointive, so his right to hold both must be determined as if the statute had not been enacted.

Plaintiff first urges that L.1962, c. 173 is unconstitutional because it violates Const.1947, Art. IV, sec. VII, par. 4, providing that 'every law shall embrace but one object, and that shall be expressed in the title.'It is entitled 'An Act concerning...