Cross-actions in lieu of prerogative writs were instituted by the above-named parties, John M. Pillsbury (Pillsbury) and the Board of Chosen Freeholders of Monmouth County (board). Richard T. O'Connor is named a party defendant in the action brought by Pillsbury.
Because the actions are interrelated and involve common questions of law as well as fact, they were consolidated by consent, and also by consent the venue thereof was transferred to Atlantic County.
The primary issue which emerges from a review of each of the complaints is whether a county counsel whose three-year term of office has not expired may be compelled, without more, to terminate his services simply because a majority of the members of the freeholder board assert they have no confidence in him as county attorney.
An outgrowth of the controversy is whether the board may transfer the duties and responsibilities of the office of county counsel to another without legally terminating the term of the incumbent.
Upon the return of respective orders to show cause the arguments of counsel indicated there were no substantial factual questions. For all practical purposes the return was treated as though there were cross-motions for summary judgment.
The complaints and affidavits reveal that Pillsbury's three-year term as county counsel will not expire, according to the resolution appointing him, until October 19, 1976. His appointment was made pursuant to N.J.S.A. 40A:9-43, which specifically directs that the term of office of the county counsel shall be three years.
On January 2, 1975 the board adopted two resolutions. By one, Richard T. O'Connor was appointed special counsel
"to serve the County of Monmouth" for a term of one year. The duties of the special counsel were defined as follows:
The second resolution requested county counsel Pillsbury to report to the board in writing on or before January 20, 1975 a detailed list concerning all matters then outstanding in which the county was involved, including, but not limited to, information as to each matter. Such a report was submitted to the board on or about January 20, 1975.
On January 21, 1975 the board adopted a motion directing Pillsbury to turn over all records and files to special counsel and further requested that he submit his resignation. Pillsbury declined both requests.
On February 4, 1975 the board enacted another resolution directing Pillsbury to turn over all records, materials and files to the director of the board, in order that it could review same
This resolution also provided that Pillsbury "need no longer appear at the Workshop or Public meetings of this Board."
Pillsbury countered, advising the director of the board that he would not permit actions that would relieve county counsel of all legal work and thereby result in that office becoming an empty shell. Shortly thereafter these actions were instituted.
Pillsbury's complaint, after recounting substantially what is stated above, asserts that Mr. O'Connor has usurped the office of county counsel, taken upon himself the privileges thereof, and since January 2, 1975 has interfered with Pillsbury's performance of his duties as county counsel.
The relief sought by Pillsbury is: (1) a judgment determining and establishing the duties of county counsel; (2) enjoining and restraining the board from interfering with or denying the exercise by him of the full and complete duties and privileges of said office, and (3) restoring to him as such all rights, duties and privileges inherent in said office.
The complaint filed in behalf of the board asserts that Pillsbury has refused to turn over the files held by him as county counsel for review by the board and that Pillsbury has failed to supply information concerning certain particular legal matters. It seeks judgment directing Pillsbury to turn over all files and records in the county in his possession for review by the board and ancillary relief.
It has been established that county counsel is an office (as distinguished from a position) and that a board of chosen freeholders is powerless to remove the occupant thereof, in the absence of cause, prior to the expiration of the statutory term for which the incumbent is appointed. Murphy v. Hudson Cty. Freeholders, 92 N.J.L. 244, 247 (E. & A. 1918). The court stated, in passing:
A similar holding was made by our former Supreme Court in Gallaher v. Camden Cty., 129 N.J.L. 290 (Sup. Ct. 1942). In that case the court reviewed two resolutions
adopted by the board of chosen freeholders. One of the resolutions removed plaintiff from the position of county counsel and the other resolution appointed another person to that position for a fixed term. At the time of the adoption of the resolutions plaintiff (like Pillsbury in the instant case) was an incumbent of the office of county counsel for a term of three years, which had not as yet expired.
Citing Murphy v. Hudson Cty. Freeholders, supra, the court likewise held that both resolutions were without authority -- the first because there was no statutory authorization for removal, and the second because there was no vacancy in the office and no statutory provision authorizing the appointment of more than one person to the office.
Even before Murphy and Gallaher, implicit in the holding of State, Hoxey, pros., v. Paterson, 40 N.J.L. 186 (E. & A. 1878), was a similar holding. There the city charter authorized the board of aldermen to annually appoint certain officers, including city counsel, to hold their several offices for one year, unless sooner removed ...