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Wilentz v. Stanger

Decided: March 11, 1943.


On appeal from a judgment of the Supreme Court, whose opinion is reported in 129 N.J.L. 294.

For the relator-appellant, Samuel Kaufman.

For the defendant-respondent, David T. Wilentz, Attorney-General, John F. Bruther, Assistant Attorney-General, and Edward J. O'Mara.


The opinion of the court was delivered by

CASE, J. The appeal is by the relator from a judgment of the Supreme Court rendered on a demurrer to an information in the nature of a writ of quo warranto, the purpose of the proceeding being to oust George H. Stanger from his office as member of the state senate from the County of Cumberland.

In July of 1941 Arthur F. Foran, of the County of Hunterdon, was a member of the New Jersey Senate; also was the respondent, George H. Stanger, of the County of Cumberland. On July 15th, 1941, the legislature enacted the Milk Control Law, R.S. 4:12A-1, et seq.; Pamph. L. 1941, ch. 274. Both of these men voted for the passage of the bill, the governor's veto thereto notwithstanding. Four days later Senator Foran was appointed to, and qualified for, the office of Director of Milk Control, an office created by the said legislation. It is conceded that Foran's appointment was to an office within the meaning of the word "office" as used in the constitution, that such office was incompatible with the office of senator and that Mr. Foran presently resigned his membership in the senate. The same paragraph (section 4) of the statute which provided for the appointment of a director also provided that "the director may appoint a deputy director and counsel and may fix their compensation" and that the director might appoint and prescribe the duties of such clerical, technical and other assistants as might be necessary. There was no statutory definition of the duties of counsel and there was no language even remotely bearing thereon other than the general direction (in section 8) that "any duly authorized appointee of the director shall * * * enforce the provisions

of this act and all rules and regulations promulgated by the director and all orders thereunder made by the director." On January 1st, 1942, Director Foran appointed Senator Stanger counsel to the Director of Milk Control at a stated salary of $3,600 per annum. No specification of the duties of counsel, either by way of rules, regulations or otherwise, appears to have been made by the director, and it is not shown what duties the respondent actually performed. On March 23d, 1942, after Mr. Stanger had received the appointment of counsel and had entered upon the duties of the appointment he, as a member of the senate, voted in favor of the annual appropriation bill which set over to the use of the State Board of Milk Control $10,000 as the salary of the director and $72,180 "for other officers and employees" of the board, within which item was Senator Stanger's salary as counsel. On October 1st, 1942, Stanger severed his connection with the director and Board of Milk Control.

Appellant's first point is that under article III, paragraph 1 of the state constitution Mr. Stanger vacated his seat in the senate when he assumed the post of counsel to the Director of Milk Control. The paragraph referred to reads:

"The powers of the government shall be divided into three distinct departments -- the Legislative, Executive, and Judicial; and no person or persons belonging to, or constituting one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided."

It appears to be appellant's contention that an ouster may be granted upon the authority of this constitutional provision, if there has been an exercise by a person belonging to one department of powers properly belonging to one of the other departments.

The duties of the Milk Control Board were administrative (Cf. State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 523) and therefore within the executive branch of the government. Stanger, as a member of the state senate, belonged to the legislative department. When he entered upon his appointment as counsel, he, to that extent, became attached to the executive department. He placed himself in

a dual role contrary to the terms of the constitution. Aside from the conflict with the plain inhibition of our paramount law the incompatibility of the two posts was made manifest when he was called upon as senator to vote, and voted, for the appropriation for the salary of his superior officer by whose grace he received and retained his appointment and by whom the amount of his salary and the volume of his duties were determined; and also when he voted for the appropriation to cover his own salary as counsel.

Further, in our opinion, the contribution or allowance made to Mr. Stanger for his services as counsel was in violation of article IV, section IV, paragraph 7 of the constitution which directs that

"Members of the Senate and General Assembly shall receive annually the sum of five hundred dollars during the time for which they shall have been elected, and while they shall hold their office, and no other allowance or emolument, directly or indirectly, for any purpose whatever. The president of the Senate and the speaker of the house of Assembly shall, in virtue of their offices, receive an additional compensation, equal to one-third of their allowance as members."

The compensation of $500 fixed for members of the legislature is the maximum compensation, according to our understanding, permitted to be paid from the state treasury for any and all services by such members to or on behalf of the state, and the words "no other allowance or emolument, directly or indirectly, for any purpose whatever" are inclusive of the compensation nominated by the director to be paid to Mr. Stanger for his services as counsel.

There are remedies and procedures by which the provisions of article III, paragraph 1 and of article IV, section IV, paragraph 7 may be given effect. We are clearly of the opinion, however, that article III, paragraph 1 does not carry a self-executing penalty to the extent that when a member of one of the governmental departments trespasses into the domain of another co-ordinated branch his office is thereby automatically vacated by reason of those constitutional ...

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