Conford, Gaulkin and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
This is an action in lieu of prerogative writs by a taxpayer and resident of the Town of Kearny in the County of Hudson. Judge Artaserse ruled in the Law Division that summary judgment should be awarded defendant on plaintiff's claim that defendant was holding incompatible offices as Mayor of Kearny and Purchasing Agent of Hudson County and should be required to vacate one of them. We find ourselves in accord with the determination below.
The authoritative rule as to incompatibility of public offices is stated as follows:
"* * * 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." McDonough v. Roach , 35 N.J. 153, 155 (1961).
And see Ahto v. Weaver , 39 N.J. 418 (1963). In the McDonough case the offices of Mayor of the Town of Dover (Morris County) and member of the Board of Chosen Freeholders of Morris County were held incompatible as held by one person on the ground that in many possible areas of negotiation or joint action by or between the town and the county the officer would be sitting "on both sides of a bargaining table," being a member of the governing bodies of both town and county. (35 N.J. , at p. 156.) But see L. 1962, c. 173, § 1 (N.J.S.A. 40:11-1.1) making lawful the simultaneous holding of elective county and municipal offices.
In the present case plaintiff also points to the same statutory provisions for joint governmental action between town and county and attempts to show that Mr. Healey would be acting in an incompatible position if functioning as Mayor of Kearny and Purchasing Agent of Hudson County in connection therewith. The flaw in the plaintiff's position, however, is in his assumption as to the duties of the county purchasing agent in such matters.
The duties of a county purchasing agent are fixed by statute. R.S. 40:21-21 provides as follows:
"The board of chosen freeholders may elect a purchasing agent for the term of three years. He shall classify and standardize, under direction of the board, all materials and supplies to be purchased for all institutions, departments, boards and commissions of the county, and shall purchase all supplies and materials for the use of all institutions, departments, boards and commissions of the county. He shall execute all contracts, in the name of the county, and perform such other services as the board shall from time to time direct."
This provision is subject to N.J.S.A. 40:25-2, which calls for award of county contracts for purchases of over $2,500 of materials, supplies or labor to the lowest responsible bidder after public advertising for bidders.
The areas of permissible contracts between counties and municipalities cited by plaintiff are these: N.J.S.A. 40:9A-1 to 4 (establish and maintain federation of libraries); N.J.S.A. 40:12-9 (joint acquisition of property for and operation of playgrounds and other recreational facilities); R.S. 40:13-1 (joint contracts for provision of public health services); R.S. 40:23-14 (joint contract for acquisition, construction and maintenance of public improvement or works); R.S. 40:23-19 (county contracts for use of municipal sewers for disposal of sewage from county buildings); N.J.S.A. 40:30-21 (joint contract for payment of proportionate cost of drainage works constructed by county drainage commission); R.S. 40:32-5 (joint purchase of land for erection of building for joint county and municipal use); R.S. 40:48-18 (joint contract for acquisition or construction of
public works or performance of other governmental functions); R.S. 40:56-17 (joint undertaking for streets and other local improvements); R.S. 40:56-50 and R.S. 40:67-25 (joint contracts for construction or improvement of roads); R.S. ...