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Merritt v. Headley

New Jersey Superior Court, Appellate Division


Decided: June 1, 1979.

JEAN E. MERRITT, PLAINTIFF-APPELLANT,
v.
FRANK A. HEADLEY, COUNTY CLERK OF MORRIS COUNTY, AND DOUGLAS H. ROMAINE, DEFENDANTS-RESPONDENTS

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

Halpern, Ard and Antell.

Per Curiam

[169 NJSuper Page 64]

The issue presented by appellant on this appeal is whether Art. IV, § V, par. 4 of the New Jersey Constitution (1947) disqualifies respondent Douglas Romaine from being a primary candidate for the New Jersey General Assembly for the 23rd District because he is a Commissioner of the Morris County Board of Taxation. The trial judge held that respondent was not disqualified from being a candidate. Because the primary election is scheduled for June 5, 1979, we accelerated the filing of briefs and heard oral argument of counsel on June 1, 1979. We now affirm.

Art. IV, § V, par. 4, of the Constitution provides:

INELIGIBILITY FOR MEMBERSHIP IN LEGISLATURE

No member of Congress, no person holding any Federal or State office or position, of profit, and no judge of any court shall be entitled to a seat in the Legislature.

[169 NJSuper Page 65]

We construe this provision to mean that persons holding offices or positions within the purview of the above-quoted constitutional provision (as respondent admittedly does) are not barred from seeking election to the Legislature -- rather, if elected to the Legislature, they automatically forfeit their prior offices or positions. See Reilly v. Ozzard , 33 N.J. 529, 538 (1963); De Feo v. Smith , 17 N.J. 183, 190 (1955); Kobylarz v. Mercer , 130 N.J.L. 44 (E. & A. 1942). See, also, the Attorney General's Formal Opinions No. 10 dated April 24, 1975 and No. M75-2075 dated May 12, 1975.

Accordingly, we hold that respondent may be a candidate for the General Assembly from the 23rd District but, if elected, must resign as a Commissioner of the Morris County Board of Taxation before being sworn in and assuming his duties as an Assemblyman.

Affirmed.

19790601


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