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Defeo v. Smith

Decided: January 10, 1955.

FRANK S. DEFEO, PLAINTIFF-APPELLANT,
v.
ALBERT S. SMITH, DEFENDANT-RESPONDENT



On appeal from the Superior Court, Law Division.

For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J.

Wachenfeld

This cause turns upon the counter-motions made by both parties, each seeking a determination in his favor based on the application of legal principles, as the facts involved are not in dispute.

The defendant was elected a chosen freeholder of Atlantic County from the second ward of the City of Brigantine in November 1951 and began serving in such capacity in January 1952.

On December 4, 1953 he was appointed a member of the County Board of Taxation of Atlantic County by the Governor of the State of New Jersey, and the defendant undertook the duties of that office on December 7, 1953, a position he still holds.

On December 11, 1953 he was chosen president of the County Board of Taxation of Atlantic County.

On December 18, 1953 the Board of Commissioners of the City of Brigantine adopted a resolution appointing the defendant as freeholder "to fill the unexpired term, if any, of said office of Chosen Freeholder, as provided by law." The reason for the adoption of this resolution is not made clear in the briefs.

The defendant assumed the duties of this office and continues as such freeholder under such appointment up to the present time, having on January 2, 1954 been chosen as director of the Board of Freeholders of Atlantic County.

The defendant contends he may lawfully hold both positions, a member of the county board of taxation and a member of the board of chosen freeholders, while the appellant, a resident, citizen and taxpayer of Atlantic County, in his action in lieu of prerogative writ, asserts that the two positions are incompatible and under our law, therefore, are illegal.

The trial court found in favor of the defendant, holding the offices were not incompatible, and consequently denied the motion for summary judgment by the plaintiff and dismissed the complaint, giving judgment for the defendant, 31 N.J. Super. 474. We certified the appeal taken by the plaintiff on our own motion.

The appellant asserts the offices of a member of the board of chosen freeholders and a member of the county board of taxation of the same county are incompatible and the holding of them concurrently by the same person is against public policy for three different reasons which will be hereafter further referred to. The acceptance, it is said, by the defendant of the appointment as chosen freeholder ipso facto vacated the office of a member of the county board of taxation held by the defendant.

It is conceded there is no direct statutory or constitutional provision which prevents the defendant from holding both positions of chosen freeholder and a member of the county board of taxation. Nevertheless the appellant insists that the provisions of chapters 20 to 37, inclusive, of Title 40 of N.J.S.A., concerning the functions, powers and duties of the board of chosen freeholders, and the provisions of chapters 3 and 4 of Title 54 of N.J.S.A., concerning the functions, powers and duties of the county board of taxation, clearly reveal the ...


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