For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor and Hall. For reversal -- Justices Jacobs and Schettino. The opinion of the court was delivered by Weintraub, C.J. Jacobs and Schettino, JJ. (dissenting).
The ultimate question is whether the common law doctrine prohibiting dual holding of incompatible offices bars a member of the State Senate from holding the post of township attorney. The trial court held the doctrine inapplicable. We certified the ensuing appeal upon our motion before the Appellate Division acted upon it.
We must first consider constitutional objections advanced by defendant. One is that since the Constitution defines eligibility for membership in the Legislature (Art. IV, § I, par. 2), no further requirement may be added, Imbrie v. Marsh, 3 N.J. 578 (1950), and an application of the common law doctrine to a member of the Legislature would have that forbidden effect. Another is that, if the common law doctrine does apply, nonetheless the Judiciary may not act since each house of the Legislature is "the judge of elections, returns and qualifications of its own members" (Art. IV, § IV, par. 2) and has the power of expulsion (Art. IV, § IV, par. 3).
The claim that dual officeholding by legislators may not be barred under the common law doctrine because the Constitution specifies qualifications for membership goes beyond questioning an application of that doctrine. If sound, the objection would block as well statutory regulation of the subject. So, for example, R.S. 19:3-5, which prohibits certain officeholding by legislators, would be invalid to the extent that it exceeds the express constitutional limitations upon dual officeholding by legislators (Art. IV, § V, pars. 1, 3, and 4). We refer to the sweeping import because the very reach of the claim casts doubt upon it.
An individual does not move beyond the restraints of law, common or statutory, when he accepts membership in the Legislature. He remains subject to them except insofar as they preclude acceptance of legislative office by one constitutionally qualified for it or impair performance of legislative duties. Prohibiting a legislator to hold another office neither denies eligibility for legislative membership nor frustrates the discharge of the duties of a legislator. Eligibility for office is one thing; the right to pursue governmental activities extraneous to the office of legislator is something else. Cf. In re Hess, 128 N.J.L. 387 (Sup. Ct. 1942).
We do not doubt the jurisdiction and duty of the courts to decide controversies of this character. A judicial determination that a legislator may not hold another office does not trench upon the authority of each house to judge the elections and qualifications of its members or to expel them. Again, the reach of the objection should be noted. If it were sound, it would bar as well judicial enforcement of a statutory restriction, such as contained in R.S. 19:3-5, since with respect to a court's power to act there can be no distinction between a statutory prohibition and a common law one.
We think the issue was settled in Wilentz ex rel. Golat v. Stanger, 129 N.J.L. 606 (E. & A. 1943). It is urged that case dealt only with the enforcement of a constitutional provision. Emphasis is placed upon the concluding reference to the court's "supreme authority to decide the constitutional questions" (p. 617). The case in part dealt with the constitutional provision for the separation of powers distributed among the branches of government and hence the quoted statement was made. But the court did not confine its jurisdiction to constitutional interpretation. On the contrary, the court there considered and decided the issue of
common law incompatibility. We see no room in the judicial article of the Constitution, Art. VI, § I et seq., to distinguish between enforcement of a constitutional provision and enforcement of a non-organic provision. If the Senate were the exclusive judge of one, it would also be of the other. The Judiciary is competent to deal with both or neither.
We can find no grant to the Senate of exclusive authority to deal with the external activities of its members. Nor is it to be implied by necessity to assure the Senate the independence its members need to discharge their assigned role in government. On the contrary, it appropriately rests within the jurisdiction of the whole Legislature to legislate upon the subject, and within the jurisdiction of the Judiciary to enforce such restraints as statutes or the common law may validly prescribe.
The constitutional objections had another facet when the matter was before the trial court. As the facts then were, defendant had first been elected to the Senate and thereafter had accepted the post of township attorney. Under the conventional statement of the common law doctrine, acceptance of the later office vacates the earlier. Kobylarz v. Mercer, 130 N.J.L. 44, 46 (E. & A. 1943). Defendant contended that his office of senator could become vacant only for causes specified in the Constitution and that dual officeholding violative of the common law doctrine was not one of them. Pending appeal, defendant was re-elected senator and hence the post of township attorney became the earlier one. Thus the doctrine, if applicable, would now jeopardize the municipal post rather than the legislative one. Hence the question whether the office of senator could be declared vacant left the case. Defendant nonetheless presses it upon this appeal. We see no barrier to a suitable remedy if the dual officeholding presents the evil the common law denounced. Should the Constitution protect against loss of the legislative office, the legislator would be barred from
holding another incompatible office. It is a simple matter to shape the relief to avoid a constitutional difficulty if there be one. Cf. Monaghan v. School Dist., 211 Or. 360, 315 P. 2 d 797, 799 (Sup. Ct. 1957).
Next, defendant contends the Constitution itself exhausts the subject of dual officeholding by legislators and thus supersedes any common law doctrine which otherwise might have applied. Reference is made to several provisions.
Article III, par. 1 reads:
"1. The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution."
More specifically, Article IV, § V, par. 3 provides:
"3. If any member of the Legislature shall become a member of Congress or shall accept any Federal or State office or position, of profit, his seat shall thereupon become vacant."
"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."
Defendant says the post of township attorney is not a " State office or position" (emphasis added) within the meaning of these provisions, and plaintiff does not disagree. Defendant points out that the Convention received specific proposals that legislators be barred from holding office under local government (3 Constitutional Convention of 1947, pp. 689, 851, 898) and a monograph upon the subject expressly referred to a provision in the constitution of Arizona to that effect (Vol. 2, p. 1477). In this setting, defendant
urges the Constitution deals completely with the problem and bars any further restraint upon dual officeholding by members of the Legislature.
The most that can be said from the record of the Convention is that a more sweeping ban was suggested but not accepted. We see no basis to invoke the maxim, expressio unius est exclusio alterius. The maxim at best is a mere aid to interpretation. Perhaps more accurately, it usually serves to describe a result rather than to assist in reaching it. The final question is whether in a given context an express provision with respect to a portion of an area reveals by implication a decision with respect to the remainder. The issue is one of intention. The answer resides in the common sense of the situation.
A constitution does not resolve all policy problems. Rather it establishes the framework of government with such specific restraints as are thought to be of eternal value and hence worthy of immunity from passing differences of opinion. If the sense of the situation suggests that an affirmative specification was meant to be exclusive, as, for example, a statement of the qualifications for office, no more may be added. Imbrie v. Marsh, supra, 3 N.J. 578 (1950). On the other hand, for further example, the fact that the Constitution assures absentee voting by military personnel does not deny the Legislature a voice in the policy question whether a like opportunity should be granted to civilian absentees. Gangemi v. Berry, 25 N.J. 1 (1957).
Where, as here, the constitutional provision is prohibitory in nature, it surely can not mechanically be inferred that what was not prohibited was thereby affirmatively guaranteed. The decision to prohibit is simply a decision to foreclose a contrary view as to the area dealt with. What is left untouched remains within the jurisdiction of government. Here the Convention determined, and the people agreed, to bar dual officeholding within the stated terms. They did not thereby ordain that all other officeholding by legislators shall be constitutionally protected.
It may be added the proposition advanced would prevent restrictive action by the Legislature itself, and would invalidate R.S. 19:3-5, referred to above, to the extent to which it exceeds the ban of the constitutional provisions. Although the aim of the argument is to disable the Judiciary from applying the common law, the assault can not be thus confined. The matter is either frozen by the Constitution or remains subject to law, be it statutory or common.
It is convenient to consider at this point the claim that R.S. 19:3-5 exhausts the subject. The statute reads in part:
"No person shall hold at the same time more than one of the following offices: elector of president and vice president of the United States, member of the United States senate, member of the house of representatives of the United States, member of the senate or of the general assembly of this state, county clerk, register, surrogate, sheriff or coroner."
It has been held that this enactment did not authorize dual officeholding beyond the terms of its interdiction and thus erase the common law doctrine. Kobylarz v. Mercer, supra (130 N.J.L., at p. 48). There involved were the office of mayor and a military office. It is true the statute speaks specifically of a member of the Legislature and hence there is more apparent substance to reliance upon it in the present case. But again, the Legislature merely prohibited what it found to be contrary to the public weal, and perhaps did so without regard to whether the ...