Lanza v. De Marino
| Decision Date | 06 June 1978 |
| Citation | 160 N.J.Super. 71,388 A.2d 1294 |
| Parties | Nicholas A. LANZA and Charles Bottita, Plaintiffs-Appellants, v. Joseph DE MARINO, and the Municipal Committee of the Democratic Party of theTownship of Woodbridge, Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
Norman Robbins, Woodbridge, for plaintiffs-appellants.
Hutt, Berkow & Hollander, Woodbridge, for respondent Joseph De Marino (Gordon Berkow, Woodbridge, on the brief).
Figarotta & Russo, Woodbridge, for respondent Municipal Committee of the Democratic Party of the Tp. of Woodbridge (Thomas F. Chansky, Woodbridge, on the brief).
Francis P. McQuade, Maplewood, for New Jersey Sheriffs Ass'n.
Before Judges LORA, SEIDMAN and MILMED.
The opinion of the court was delivered by
LORA, P. J. A. D.
Plaintiffs, Democratic committeemen in the Township of Woodbridge, by complaint in lieu of prerogative writs, sought to have defendant Joseph De Marino vacate the office of Sheriff of Middlesex County by virtue of his acceptance of the office of municipal chairman of the Woodbridge Township Democratic Committee or, alternatively, to have him declared ineligible for the office of municipal chairman. Following oral argument the trial judge held that a distinction had to be drawn between a conflict of interest and a conflict of duties, and since there was no conflict of duties between the two offices held by De Marino, he entered judgment in favor of De Marino and defendant Democratic Municipal Committee.
Plaintiffs appeal, contending that (1) the statutory prohibition against a sheriff holding any other civil office embraces the office of chairman of a political party's municipal committee within its proscription, and (2) the common law prohibition against holding incompatible offices, where the nature of the duties of the two offices renders it improper from a public policy standpoint for a person to retain both, is applicable to the present circumstances to prohibit the simultaneous holding of the offices of sheriff and municipal political party chairman.
N.J.S.A. 40A:9-108 provides:
No person shall hold any other civil office during the time he holds and exercises the office of sheriff and by acceptance of the latter office his former office shall be deemed vacated.
A person holding "civil office" has been defined as one appointed or elected for the purpose of exercising the functions and carrying on the operations of government. Cedar Grove Bd. of Ed. v. State Bd. of Ed., 115 N.J.L. 67, 71, 178 A. 208 (Sup.Ct.1935). In Kobylarz v. Mercer, 130 N.J.L. 44, 31 A.2d 208 (E. & A. 1942), the terms "civil office" and "public office" are used interchangeably, but they are nevertheless distinguishable in that the former includes all offices exercising governmental or sovereign power except military offices, and the latter encompasses both civil and military offices. 67 C.J.S. Officers § 3 at 103. For cases in other jurisdictions defining civil office in terms of the exercise of governmental or sovereign power, see Wood v. Miller, 154 Ark. 318, 322-323, 242 S.W. 573, 575 (Sup.Ct.1922); State ex rel. Landis v. Futch, 122 Fla. 837, 841, 165 So. 907, 909 (Sup.Ct.1936); In re Advisory Opinion to the Governor, 94 Fla. 620, 625-626, 113 So. 913, 915 (Sup.Ct.1927); State v. Spaulding, 102 Iowa 639, 644-645, 72 N.W. 288, 289 (Sup.Ct.1897); State ex rel. Barney v. Hawkins,79 Mont. 506, 511, 257 P. 411, 413 (Sup.Ct.1927); State ex rel. Herbert v. Ferguson, 142 Ohio St. 496, 501, 52 N.E.2d 980, 983-984 (Sup.Ct.1944).
"Public office" is defined in N.J.S.A. 19:1-1 as follows:
"Public office" includes any office in the government of this State or any of its political subdivisions filled at elections by the electors of the State or political subdivision.
It is thereby distinguished from an office held in a political party which is defined in the same statute as "Political party" means a party which, at the election held for all of the members of the General Assembly next preceding the holding of any primary election held pursuant to this Title, polled for members of the General Assembly at least 10% Of the total vote cast in this State.
"Party office" means the office of delegate or alternate to the national convention of a political party or member of the State, county or municipal committees of a political party.
The explicit nature of the above definitions leads us to conclude that the Legislature intended to differentiate between public and party offices and that the office of chairman of a municipal committee is not a public office in that it is not "in the government of this State or any of its political subdivisions" and is not "filled at elections by the electors of the State or political subdivision." 1 Additionally, it appears to us that if the Legislature had intended to prohibit a sheriff from holding a political office, it would have so provided in N.J.S.A. 40A:9-108 or as it did in the case of prosecutors in N.J.S.A. 2A:158-21. Moreover, as stated in Rogers v. Republican Party State Comm., 96 N.J.Super. 265, 271, 232 A.2d 852 (Law Div. 1967), the governmental functions, if any, given to a political party committee or its chairman are so minimal in significance that they cannot be classified as a truly governmental entity. See also, 25 Am.Jur.2d, Elections, § 124 at 810; 29 C.J.S. Elections § 85 at 188. See generally, Glasser, "A New Jersey Municipal Law Mystery: What is a Public Office," 7 Rutg.L.Rev. 503 (1952).
In Opinion of the Justices, 347 Mass. 797, 800, 197 N.E.2d 691, 694 (Sup.Jud.Ct.1964), it was specifically held that a public office does not include a position on a political committee Without attempting an exhaustive definition of what constitutes a "public office," we think that it is one whose duties are in their nature public; that is, involving in their performance the exercise of some portion of the sovereign power, whether great or small, and in whose proper performance all citizens, irrespective of party, are interested, either as members of the entire body politic or of some duly-established division of it. Brown v. Russell, 166 Mass. 14, 43 N.E. 1005, 32 L.R.A. 253 * * *. Manifestly, membership in a political committee belonging to one party or another does not come within the above description of what constitutes public office. The fact that the legislature has deemed it expedient to regulate by statute the election and conduct of political committees does not make the office a public one. The members of them continue to be, as before, the officers of the party which elects them, and their duties are confined to matters pertaining to the party to which they belong, and which alone is interested in their proper performance.
Accordingly, it is our opinion that chairman of a municipal committee is a political, and not a civil or public, office and defendant De Marino should not be barred by N.J.S.A. 40A:9-108 from holding both the office of sheriff and that of chairman of the municipal committee of the Democratic Party of the Township of Woodbridge.
It is plaintiffs' further contention that the common law prohibition against holding incompatible offices bars De Marino from holding both the sheriff's and chairman's positions.
Incompatibility was defined in Reilly v. Ozzard, 33 N.J. 529, 543, 166 A.2d 360, 367 (1960) as follows:
Incompatibility is usually understood to mean a conflict or inconsistency in the functions of an office. It is found where in the...
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League of Women Voters v. Countywide Crim. Justice Coordination Com.
...too far; it did not have the power to destroy itself or recommend its own demise. (180 A.2d at p. 143.) Finally, Lanza v. De Marino (1978) 160 N.J.Super. 71, 388 A.2d 1294 follows the same line of reasoning. (388 A.2d at p. 1297.) It is logical to conclude the power to devise legislative pr......
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