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McDonough v. Roach

Decided: June 5, 1961.

RICHARD T. MCDONOUGH, THOMAS J. MILANO AND THOMAS M. GILMARTIN, PLAINTIFFS-APPELLANTS,
v.
JOHN ROACH, JR., DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.

Weintraub

[35 NJ Page 154] In November 1959 defendant was elected Mayor of the Town of Dover and also a member of the Board of Chosen Freeholders of Morris County. On January 1, 1960 he was inducted into the office of mayor and on the following day he entered office as a member of the governing body of the county. The issue is whether he may hold both posts notwithstanding the common-law bar

against dual holding of incompatible offices. The trial court held he could. We certified plaintiffs' appeal before the Appellate Division considered it.

We recently canvassed the subject in Jones v. MacDonald, 33 N.J. 132 (1960). We there repeated from State ex. rel. Clawson v. Thompson, 20 N.J.L. 689 (Sup. Ct. 1846), the following statement of the basic rule:

"* * * 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."

Upon that test we held a councilman of a municipality could not also be a member of the county board of taxation because of conflicting duties with respect to tax appeals and the equalization by the county board of the aggregates of real property for the purpose of the allocation of the cost of county government. We pointed out that the common-law doctrine is not limited to cases in which one office is subordinate to the other, but rather embraces as well all situations in which under the established scheme of government "the duties of office clash in their demands with the result that the incumbent must choose between them * * *. An officer cannot serve two masters with conflicting statutory roles." (33 N.J., at p. 137)

We see no meaningful distinction between Jones and the present case.

Here the Legislature has authorized the county to contract with a municipality with respect to sundry subjects. N.J.S.A. 40:4-14 (municipal audit); N.J.S.A. 40:9A-1 and 2 (federation of libraries); N.J.S.A. 40:12-9 (joint acquisition and operation of playgrounds and other recreational facilities); R.S. 40:13-1 (public health service); N.J.S.A. 40:23-6.23 (distribution of federal

surplus commodities); R.S. 40:23-14 and R.S. 40:48-18 (public improvements and works and rendition of various services); R.S. 40:23-19 (disposal of county sewage); R.S. 40:29-3 (improvements relating to watercourses); N.J.S.A. 40:30-21 (drainage projects); R.S. 40:32-5 (construction of public buildings for joint use); R.S. 40:56-17 (local improvements); R.S. 40:56-48 and 50, R.S. 40:67-25, and R.S. 27:16-70 (road improvements); R.S. 40:62-21 (supply of electricity, gas, steam, etc.); R.S. 40:69-4 (deepening and widening of stream channels).

In all of these matters the terms upon which the project is to be pursued are left to the agreement of the public bodies. In the negotiations the county board is bound to consider the interests of all of its citizens while the local governing body has a like obligation to the citizenry of the municipality alone. No man, much less a public fiduciary, can sit on both sides of a bargaining table. He cannot in one capacity pass with undivided loyalty upon proposals he advances in his other role. The same clash of obligations would also affect the exercise of the county's power to take over a municipal road with local consent, R.S. 27:16-5 and 6, and the exercise of municipal power to take over a county road with the county's consent, R.S. 27:16-71. The offices are accordingly incompatible. It was so held in like circumstances in People ex rel. Kraemer v. Bagshaw, 55 Cal. App. 2 d 155, 130 P. 2 d 243 (D. Ct. App. 1942).

Defendant urges that every member of a county board must experience the same clash of interest by virtue of residence in one of its communities. Upon this basis he seeks to invoke Reilly v. Ozzard, 33 N.J. 529 (1960), in which we held there was no common-law incompatibility between the offices of municipal attorney and legislator. The result there rested upon a finding that the municipal attorney was not engaged to advance bills before the Legislature on behalf of the municipality. We differentiated ...


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