On appeal from the Superior Court, Law Division.
For affirmance -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For reversal -- None. The opinion of the court was delivered by Weintraub, C.J.
The question is whether defendant may lawfully be both a member of the Somerset County Board of Taxation and a Councilman of the Borough of North Plainfield. The trial court held he may not. From the resulting judgment declaring his office of councilman vacated, defendant appealed, and we certified the matter on our motion before the Appellate Division considered it.
There being no applicable statutory or constitutional provision, we are concerned with the common-law doctrine prohibiting
dual holding of incompatible offices. The outer reaches of the doctrine are not easily delineated. Courts "are prone to avoid the formulation of a general definition and content themselves with the discussion of specific cases and particular facts * * *." 42 Am. Jur., Public Officers, § 70, p. 935. We so approach this matter. Indeed we are mindful of other litigation awaiting argument before us and hence it is particularly appropriate to decide no more than this case requires.
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 (1955).
Defendant appears to urge the doctrine is not offended because the office of councilman is local whereas his office in the county board, as held in Warren v. Hudson County, 135 N.J.L. 178, 180 (E. & A. 1947), is a state one. The distinction is not pertinent. A municipality, as a body politic, is itself an agency of the State, Bergen County v. Port of New York Authority, 32 N.J. 303, 312 (1960), and hence the borough is not materially dissimilar from the county board in that respect. More importantly, the division of government for the purpose of home rule does not insulate the public from the injury occasioned by dual holding of incompatible offices. The public interest is equally evident whether the offices be both local or state or one of each. Hence in DeFeo v. Smith, supra, the doctrine was applied although the officer was a member of the county tax board and a member of the county board of chosen freeholders.
In DeFeo (17 N.J., at p. 186), we quoted the following from 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. '"
The question here is whether incompatibility inheres in the rights, duties or obligations of the offices. The county board of taxation is an agency of the State to enforce its tax statutes. Defendant says that a councilman has no role with respect to assessments for taxation since that duty is the assessor's and the assessor is elected and legally beyond the supervision and control of the governing body. If we assumed the assessor is immune from the will or wishes of the governing body, the inquiry would not end. The municipality itself has a statutory role with respect to tax proceedings before the county board of taxation and it is in that area that defendant may find himself drawn in opposite directions.
Appeals from individual assessments may be prosecuted by the taxpayer or by the municipality. N.J.S.A. 54:3-21. Whether to resist a taxpayer's appeal or to prosecute one for the municipality is within the discretion of the municipality. As a member of the county board, defendant would sit in review of his own decision as a member of the borough's governing body. Defendant would then review his action as a member of the county board in determining whether the municipality should appeal from the board's judgment. N.J.S.A. 54:2-35. A municipality may ask the county board to add omitted ...