For affirmance -- Chief Justice Weintraub, and Justices Francis, Proctor, Hall and Haneman. For affirmance in part and reversal in part -- Justices Jacobs and Schettino. The opinion of the court was delivered by Hall, J. Jacobs and Schettino, JJ. (dissenting as to Weaver).
[39 NJ Page 421] At issue in this litigation is whether the defendants Weaver and Klein hold incompatible public offices in violation of the common law prohibition. The plaintiff, a taxpayer, sought their ouster from all of the offices they respectively occupy "or such other judgment as may be equitable and just." The Law Division, on cross-motions for summary
judgment, decided for defendants. The ensuing appeal reaches us on our grant of certification, applied for while the matter was awaiting hearing in the Appellate Division. R.R. 1:10-1A.
When the case was first argued, we were advised of proposed legislation then pending which would substantially modify the common law rule. We therefore deferred our decision to await the outcome. The bill received legislative approval on May 7, 1962, but was returned by the Governor on November 19, 1962 for reconsideration and recommended amendment. It ultimately became L. 1962, c. 173, approved December 3, 1962 and effective immediately. We thereafter called for supplemental briefs and reargument so that the matter might be determined with due regard to the new legislation since it is expressly made applicable to incumbents of affected offices and positions. Sec. 4(b).
The test of the common law rule that one may not hold incompatible offices is, as the rule itself, an ancient one. The classic statement in this state is found in 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. "
An accurate modern expression is set forth in Reilly v. Ozzard, 33 N.J. 529 (1960):
"* * * Incompatibility is usually understood to mean a conflict or inconsistency in the functions of an office. It is found where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another." (at p. 543).
The reason behind the prohibition is succinctly summarized in Jones v. MacDonald, 33 N.J. 132 (1960):
"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)." (33 N.J., at p. 135)
L. 1962, c. 173 provides:
"1. It shall be lawful for a person to hold simultaneously an elective county office and an elective municipal office.
2. It shall be lawful for a member of the Legislature of the State to hold simultaneously an elective or appointive office or position in county or municipal government.
3. Nothing contained in this act shall be deemed to prevent the incumbent of any office from abstaining from voting in any matter in which he believes he has a conflict of duty or of interest, nor to prevent a challenge of a right to vote on that account under the principles of the common law or any statute.
4. (a) Nothing herein contained shall be deemed to repeal or supersede any statute prohibiting the dual holding of offices or positions.
(c) For the purposes of this act the term 'elective office' shall mean an office to which an incumbent is elected by the vote of the general electorate. * * *"
What the legislation does -- and it is unquestionably within the power of the Legislature, McDonough v. Roach, 35 N.J. 153, 157 (1961), -- is to allow such dual office holding as was previously prohibited by reason of incompatibility in the two situations specified in sections 1 and 2, unless forbidden by prior statute, e.g., R.S. 19:3-5; 40:41-20. (These statutes prohibit specific dual office holding absolutely, whether or not there is incompatibility in fact.) The common law rule remains in force in all other cases.
The provisions of section 3 evidence a further legislative intent which should be noted. As has been said, the common law doctrine applied inexorably whenever there was ...