In lieu of prerogative writ; motion for summary judgment. Conclusions.
[31 NJSuper Page 475] Both parties litigant are in accord as to the facts in this matter and the decision on the motion will be dispositive of the case. The plaintiff is a resident, citizen and taxpayer of Atlantic County and he brings this action in lieu of prerogative writ alleging that the defendant presently holds two incompatible offices in the County of Atlantic. On December 4, 1953, defendant was appointed a member of the county board of taxation and his appointment was approved by the Senate on December 7, 1953. He was chosen president of the county board of taxation on December 11, 1953. Defendant is also presently serving as Director of the Board of Chosen Freeholders of Atlantic County since January 2, 1954. He first became a member of the board of chosen freeholders by election from the Second Ward of the City of Brigantine, Atlantic County, in November, 1951. On December 18, 1953, the Board of Commissioners of the City of
Brigantine adopted a resolution appointing Smith as freeholder "to fill the unexpired term, if any, of said office of Chosen Freeholder, as provided by law."
The plaintiff contends that on the basis of these undisputed facts, he is entitled to judgment as a matter of law for the reason that the office of chosen freeholder and the office of a member of the county board of taxation are incompatible offices; that by defendant's acceptance of the December 4, 1953 appointment to the county board of taxation, he ipso facto vacated his office as a member of the county board of chosen freeholders and that by his subsequent acceptance of December 18, 1953 appointment as a chosen freeholder, he in turn vacated the office of member of the county board of taxation.
Are these two offices incompatible with each other, or can they subsist in one and the same person at the same time?
In one of the earliest cases in New Jersey dealing with the holding by one person of incompatible offices -- State v. Jabez Parkhurst (1802), reported in the Appendix to 9 N.J.L. , Chief Justice Kirkpatrick stated:
"Certain offices are in their own nature incompatible and inconsistent, and cannot be exercised by the same person at the same time. Certain other offices which might be fully executed by the same person at the same time, upon considerations of policy may be rendered incompatible by positive law."
A diligent search of the Constitution and the statutes reveals that there is no positive law declaring these two particular offices of freeholder and a member of the county tax board incompatible. The only constitutional prohibitions to dual-office holding are found in the following Articles:
Article 4, Section 5, paragraph 4: "No member of Congress, no person holding any Federal or State office or position, of profit, and no judge of any court shall be entitled to a seat in the Legislature."
Article 6, Section 6, paragraph 7: "The Justices of the Supreme Court, the Judges of the Superior Court and the Judges of the County Courts shall hold no other office or position, of profit, under this
State or the United States. Any such Justice or Judge who shall become a candidate for an elective public office shall ...