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Lanza v. De Marino

Decided: June 6, 1978.

NICHOLAS A. LANZA AND CHARLES BOTTITA, PLAINTIFFS-APPELLANTS,
v.
JOSEPH DE MARINO, AND THE MUNICIPAL COMMITTEE OF THE DEMOCRATIC PARTY OF THE TOWNSHIP OF WOODBRIDGE, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

Lora, Seidman and Milmed. The opinion of the court was delivered by Lora, P.J.A.D.

Lora

Plaintiffs, Democratic committeemen in the Township of Woodbridge, by complaint in lieu of prerogative writs, sought to have defendant Joseph De Marino vacate the office of Sheriff of Middlesex County by virtue of his acceptance of the office of municipal chairman of the Woodbridge Township Democratic Committee or, alternatively, to have him declared ineligible for the office of municipal chairman. Following oral argument the trial judge held that a distinction had to be drawn between a conflict of interest and a conflict of duties, and since there was no conflict of duties between the two offices held by De Marino, he entered judgment in favor of De Marino and defendant Democratic Municipal Committee.

Plaintiffs appeal, contending that (1) the statutory prohibition against a sheriff holding any other civil office embraces the office of chairman of a political party's municipal committee within its proscription, and (2) the common law prohibition against holding incompatible offices, where the nature of the duties of the two offices renders it improper from a public policy standpoint for a person to retain both, is applicable to the present circumstances to prohibit the

simultaneous holding of the offices of sheriff and municipal political party chairman.

N.J.S.A. 40A:9-108 provides:

No person shall hold any other civil office during the time he holds and exercises the office of sheriff and by acceptance of the latter office his former office shall be deemed vacated.

A person holding "civil office" has been defined as one appointed or elected for the purpose of exercising the functions and carrying on the operations of government. Cedar Grove Bd. of Ed. v. State Bd. of Ed. , 115 N.J.L. 67, 71 (Sup. Ct. 1935). In Kobylarz v. Mercer , 130 N.J.L. 44 (E. & A. 1942), the terms "civil office" and "public office" are used interchangeably, but they are nevertheless distinguishable in that the former includes all offices exercising governmental or sovereign power except military offices, and the latter encompasses both civil and military offices. 67 C.J.S. Officers ยง 3 at 103. For cases in other jurisdictions defining civil office in terms of the exercise of governmental or sovereign power, see Wood v. Miller , 154 Ark. 318, 322-323, 242 S.W. 573, 575 (Sup. Ct. 1922); State ex rel. Landis v. Futch , 122 Fla. 837, 841, 165 So. 907, 909 (Sup. Ct. 1936); In re Advisory Opinion to the Governor , 94 Fla. 620, 625-626, 113 So. 913, 915 (Sup. Ct. 1927); State v. Spaulding , 102 Iowa 639, 644-645, 72 N.W. 288, 289 (Sup. Ct. 1897); State ex rel. Barney v. Hawkins , 79 Mont. 506, 511, 257 P. 411, 413 (Sup. Ct. 1927); State ex rel. Herbert v. Ferguson , 142 Ohio St. 496, 501, 52 N.E. 2d 980, 983-984 (Sup. Ct. 1944).

"Public office" is defined in N.J.S.A. 19:1-1 as follows:

"Public office" includes any office in the government of this State or any of its political subdivisions filled at elections by the electors of the State or political subdivision.

It is thereby distinguished from an office held in a political party which is defined in ...


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