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Schear v. City of Elizabeth

Decided: January 20, 1964.

THOMAS W. SCHEAR (AND 6 OTHERS), PLAINTIFFS-APPELLANTS,
v.
CITY OF ELIZABETH, ETC., ET AL., DEFENDANTS-RESPONDENTS



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

Francis

[41 NJ Page 322] Plaintiffs, property owners and taxpayers, instituted this action in lieu of prerogative writ to review a

determination of the Planning Board and the Board of Public Works of the City of Elizabeth that a certain area of the City is a blighted area under N.J.S.A. 40:55-21.1 et seq. The trial judge found the evidence adequate to support the action of both bodies. Plaintiffs argued further in the Law Division that the blight resolution should be invalidated because of an alleged incompatibility of office arising from the fact that John M. Boyle, a member of the Planning Board, was also City Attorney of Elizabeth. By way of refinement of that argument, they contended the dual office holding operated to prejudice their cause. These claims, too, were decided adversely to plaintiffs. Their appeal to the Appellate Division was certified on our own motion before argument there.

Mr. Boyle was appointed to the Planning Board on January 22, 1957 as a Class IV (citizen) member. N.J.S.A. 40:55-1.4. At that time, which was prior to the inception of the present urban renewal project, he held no official position in the City. The first determination of blight was made on June 9, 1959. Boyle joined in the unanimous vote of the Board. On May 6, 1960 he was appointed Second Assistant City Attorney. Thereupon, he was designated as a Class II member of the Board, which class is limited to one of the officials of the municipality to be selected by the mayor. N.J.S.A. 40:55-1.4. He has continued as such member to the present time. On July 9, 1959, before the governing body had officially considered the Board's blight declaration, plaintiffs instituted this proceeding attacking the declaration. Later, when the governing body did approve and adopt the determination of blight, the complaint was amended to challenge its validity. On May 8, 1961 the trial court remanded the matter to the Planning Board because of certain deficiencies in its findings. Mr. Boyle became City Attorney on July 10, 1962.

After the remand further investigation was made and additional hearings were held by the Board. A new declaration of blight was issued on November 28, 1962, Mr. Boyle (who

was then Secretary of the Board) voting with the majority. Shortly thereafter, on December 26, 1962, the City Council (the form of government was changed in January 1961 to Mayor-Council Plan F of the Faulkner Act, N.J.S.A. 40:69A-1 et seq.) approved the determination of blight. Plaintiffs' attack was then renewed in the Law Division, resulting, as has been said, in judgment in favor of the defendants.

On appeal the attack on the blight resolution is based solely on the dual office holding of the City Attorney. Plaintiffs say his duty as a member of the Planning Board was to participate fully and fairly in the preliminary investigation and determination of the blight problem. That duty, they charge, was inconsistent with his obligation as City Attorney to furnish independent and impartial advice, either voluntarily or on request, in aid of the required independent determination of the City Council as to the legal propriety of the application of the Blighted Area Act to the locality involved, the propriety of the proceedings before the Planning Board, and whether the act was being followed in proper procedural and substantive fashion by the City Council. They argue also that they were prejudiced because the City Attorney was not only a member of the Planning Board, but its Secretary and Attorney as well. The allegation that Mr. Boyle was attorney for the Board may be disposed of summarily. The trial court found no adequate factual support for the statement and our examination of the record has revealed no ground for appellate interference with his finding.

The charge that Mr. Boyle should not have participated in the proceedings before the Planning Board or the governing body because of his alleged incompatible office holding was never asserted before either body. Nor was it set forth in any of the pleadings in the case. As far as can be gleaned from the record, it was presented for the first time in the Law Division. In our judgment the public interest demands that such objections be made known to the agencies of government involved at the earliest possible date. In that way opportunity

is given, before substantial time and public funds are expended, to consider the existence of any conflict of duty or possible conflict of interests, and whether the dual officeholder should withdraw from the proceedings. It is not necessary in the present case to decide whether such belated objection should be barred. The defendants seek a decision on the merits and we agree the ends of justice will be served by doing so.

The doctrine that a person cannot hold two incompatible public offices is a development of the common law. Incompatibility exists when there is a conflict or inconsistency in the functions of the two offices, i.e., where "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." Reilly v. Ozzard, 33 N.J. 529, 543 (1960); Ahto v. Weaver, 39 N.J. 418, 422 (1963); "Conflict of Interests: State Government Employees," 47 Va. L. Rev. 1034, 1071-1076 (1961). But, as we said in the cases cited, application of the common law in this field, within constitutional limitations, is largely subject to legislative policy. If the lawmakers, acting within those limits as the "architect[s] of the structure of government," ordain that one person may or may not hold two public offices, the judiciary cannot interfere. Reilly v. Ozzard, supra, 33 N.J., at p. 550; Ahto v. Weaver, supra (39 N.J., at p. 423).

The Legislature has prescribed the composition of the Planning Board. L. 1953, c. 433, ยง 4. ...


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