The opinion of the court was delivered by Antell, J.c.c. (temporarily assigned).
[101 NJSuper Page 496] Plaintiff is the Superintendent of Elections and Commissioner of Registration of Essex County. By this action he challenges the right of defendant Board of Chosen Freeholders of Essex County to remove his legal counsel from the county payroll. He also seeks to have the county treasurer enjoined from complying
with the terms of the resolution by which the action of the board was taken. On these cross-motions for summary judgment no material facts are in dispute.
On December 16, 1965 plaintiff, acting under color of N.J.S.A. 19:31-2 and N.J.S.A. 19:32-2, appointed Patrick J. Hanifin, Esq., a member of the New Jersey Bar, as counsel to his office. Hanifin was thereupon placed on the county payroll by defendant board and served in that position until January 25, 1968. During the intervening time Hanifin provided plaintiff with legal opinions, counseled as to election recounts, represented plaintiff in court hearings, supervised the employment of additional attorneys on election days for court hearings, took necessary legal action where election violations were alleged, and generally provided those services which counsel to governmental agencies regularly furnish. He also arranged for neighborhood registration and the investigation of election law complaints, helped supervise office routine during vacation periods, and performed "other duties" which plaintiff delegated to him. The efficiency of his service is not drawn into question on this proceeding.
On January 25, 1968, following successive changes in the composition of its membership, defendant board passed its controversial resolution No. 40 which directed the county treasurer to discontinue payment of salary or other remuneration to Hanifin "or to any other person appointed to the position of Counsel, Commissioner of Registration and Superintendent of Elections and to remove his name from the list of current employees". The county treasurer has complied with the mandate of the resolution and plaintiff has since administered his office without benefit of his own counsel.
Defendants justify their action by arguing that although plaintiff may hire and fire his administrative personnel, he is without authority to engage his own counsel, and that whatever legal representation plaintiff, being a state officer, requires is obtainable only from the Attorney General. Plaintiff rejoins that the board has usurped his exclusive power
to remove appointees of his office and that there is no limit upon his power to engage assistants other than the statutory annual budget ceiling of $655,000 fixed by the Legislature. Subject to that sole restriction plaintiff argues that all expenses in connection with personnel appointments must be paid by the defendant board, citing N.J.S.A. 19:31-2 and N.J.S.A. 19:32-2.
In support of their position defendants rely upon the following statutes:
"No officer, department, board, body, commission or instrumentality of the State Government shall employ any person to act as attorney, counsel, solicitor, legal assistant or other legal adviser to such officer, department, board, body, commission or instrumentality. Nor shall such officer, department, board, body, commission or instrumentality of the State Government employ any person in any legal capacity for the purpose of giving legal advice or rendering legal services, but such officer, department, board, body, commission or instrumentality may employ an attorney-at-law under full-time employment solely in the performance of administrative functions entailing the hearing of issues and determining facts in order that the said officer, department, board, body, commission or instrumentality may perform his or its functions as required by law; provided, however, that no such attorney shall act in a legal capacity in the prosecution of any charge or complaint before any such officer, department, board, body, commission or instrumentality."
N.J.S.A. 52:17 A -4, which provides that the Attorney-General shall:
(e) Act as the sole legal adviser, attorney or counsel, notwithstanding the provisions of any other law, for all officers, departments, boards, bodies, commissions and instrumentalities of the State Government in all matters other than those requiring the performance of administrative functions entailing the enforcement, prosecution and hearing of issues as imposed by law upon them; and represent them in all proceedings or actions of any kind which may be brought for or against them in any court of this State; and shall likewise interpret all statutes and legal documents, inspect and approve contracts and titles and otherwise control their legal activities.
(g) Attend generally to all legal matters in which the State or any officer, department, board, body, commission or instrumentality of the State Government is a party or in which its rights or interests are involved."
"The Attorney-General may assign an assistant Attorney-General, a deputy Attorney-General or an assistant deputy Attorney-General to serve in any legal capacity in or for any officer, department, board, body, commission or instrumentality of the State Government on a part-time or full-time basis whenever, in the judgment of the Attorney-General, such assignment will contribute to the efficiency of the operation of such office, department, board, body, commission or instrumentality, but such member of the Division of Law shall remain under the supervision and control of the ...