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Passaic County Prosecutor v. Passaic County Board of Chosen Freeholders

Decided: May 2, 1978.

PASSAIC COUNTY PROSECUTOR, BURRELL IVES HUMPHREYS, PLAINTIFF-RESPONDENT,
v.
PASSAIC COUNTY BOARD OF CHOSEN FREEHOLDERS AND PASSAIC COUNTY TREASURER, RICHARD DE MARCO, DEFENDANTS-APPELLANTS



On appeal from Superior Court, Law Division, Passaic County.

Allcorn, Morgan and Horn. The opinion of the court was delivered by Horn, J.A.D.

Horn

The issue in this case is whether assistant county prosecutors and county investigators must be residents of the county for which the appointing officer is prosecutor.

The events which brought this issue to us commenced with the refusal of defendants, the county and its treasurer, to pay the salaries of an assistant prosecutor and a county investigator who were duly appointed by plaintiff prosecutor. The sole reason for defendants' refusal to pay the respective salaries was the nonresidence of each of said appointees in Passaic County, for which county plaintiff is prosecutor. As a consequence of defendants' withholding salary payment, plaintiff instituted an action in lieu of prerogative writs against defendants in order to compel payment. This action culminated in a hearing, following which the trial judge entered a judgment, adverse to the position of defendants, directing them to pay the respective

salaries. This judgment precipitated the present appeal.

The parties agree that the controlling statute is N.J.S.A. 40A:9-1, which at the time of the trial court's decision read as follows:*fn1

Except in the case of counsel, attorney, engineer, health officer, auditor, comptroller, appointed tax collector, elected assessors who have received tenure under P.L. 1967, c. 44, ยง 7 (C. 54:1-35:31), appointed tax assessor, or members of boards of assessors or as otherwise provided by law, every person holding an office, the authority and duties of which relate to a county only, or to a municipality only, shall reside within said county or municipality, as the case may be.

Any person holding or attempting to hold any such office in a county or municipality in violation hereof, may be ousted in a proceeding in lieu of prerogative writ.

The resolution of the controversy depends on whether the respective offices of assistant county prosecutor and county investigator are positions "the authority and duties of which relate to a county only."

No question is raised as to the validity and enforceability of residency requirements for governmental employees generally. See Skolski v. Woodcock , 149 N.J. Super. 340, 344 (App. Div. 1977); Mandelbaum v. Civil Service Dep't , 142 N.J. Super. 323 (App. Div. 1976), app. dism. 74 N.J. 257 (1977), and the cases cited respectively therein.

The trial judge found that the appointees in this case did not hold offices

The quoted passage from the judge's oral opinion sounds the theme of plaintiff's argument that the two appointees need not be residents of Passaic County. Thus plaintiff suggests that although N.J.S.A. 2A:158-5 may refer to the prosecutor as having "within his county" the powers of the Attorney General, and language in Morss v. Forbes , 24 N.J. 341 (1957), describes the prosecutor as a "local official," in a larger sense a prosecutor and his aides do not act for the county only when they fulfill their duty to enforce the law. They act, he says, for the State in executing his responsibility to "use all reasonable and lawful diligence for the detection, arrest, indictment and conviction of offenders against the laws." N.J.S.A. 2A:158-5. And in doing this he, and therefore they, work closely with other prosecutors and the Attorney General, who maintains a general supervision over county prosecutors for the purpose of promoting effective and uniform enforcement of the criminal laws throughout the State. N.J.S.A. ...


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