[127 NJSuper Page 202] Defendant Penta moves for dismissal of both counts of the indictment above-captioned in which
he is charged with alleged violations of the criminal laws of this State.
Factually it is conceded and alleged in the indictment that the crimes with which he is charged in both counts occurred during the last week of May 1971. At that time and date defendant had been elected to the office of councilman of the Borough of Highlands, but did not assume the office by taking the oath prescribed until the following July 1, which was the beginning of his term. Defendant is charged in the first count with violating N.J.S.A. 2A:93-4 and in the second count of violating N.J.S.A. 2A:85-1. More particularly, it is charged in the first count that defendant
The second count repeats the identical language and then additionally alleges:
More succinctly, the charge under count 1 is soliciting a reward for a vote, and the charge under count 2 is misconduct in office. The question which is thus squarely presented, assuming
arguendo that all facts alleged in the indictment are true, is whether a person who is elected to public office thus becomes a public official within the purview of the language employed in the two statutes involved prior to such person being sworn into office, and assuming the duties thereunder. A research of the cases by the court and counsel indicates no case in this jurisdiction dealing squarely with this question.
N.J.S.A. 2A:93-4, which is part of the "Bribery and Corruption" chapter of the "Crimes" Title, provides as follows:
Any member or officer of any state, county or municipal government, or member of any public authority, board, association, commission or committee, who solicits or receives directly or indirectly any money or valuable thing, reward or commission for his vote as a member thereof is guilty of a misdemeanor.
Defendant argues that the statute, as it would be attempted to be applied to him, involves only "any member or officer" of a municipal government. He further argues that in order to bring him within the purview of the statutory language he must have been at the time of the alleged offense an "officer or member" of such municipal government, and until such time as he took the oath of office on July 1, 1971 he was not "a member or officer" of a municipal government.
The contention appears to have merit and it is the court's opinion that to extend the language of the statute to include within the definition of "member" or "officer" a councilmanelect who has not yet been sworn into office would be to place an interpretation on the language beyond the fair meaning of its terms and thus apply it to persons and conduct not within and beyond the contemplation of the statute. See State v. Provenzano, 34 N.J. 318, 322 (1961).
A consideration of the statutes and cases interpreting what constitutes an officer or member of a municipal government is appropriate in support of the court's conclusion above stated. N.J.S.A. 41:1-3 requires every person elected to a municipal ...