On appeal from Superior Court, Law Division, Bergen County.
Allcorn, Morgan and Horn. The opinion of the majority was delivered by Horn, J.A.D. Allcorn, P.J.A.D. (dissenting).
The issue in this case is whether N.J.S.A. 40A:9-108, which provides that "[n]o person shall hold any other civil office during the time he holds and exercises the office of sheriff . . ." is applicable to an undersheriff.
The Attorney General, as plaintiff, initiated an action in lieu of prerogative writs in order to secure relief, on the thesis that said statute barred undersheriffs as well as sheriffs from holding any other civil office. The pleadings disclose no factual dispute.
On June 1, 1973 defendant Joseph F. Job, Sheriff of Bergen County, appointed defendant Peter F. Curcio ("defendant" hereinafter refers only to Curcio unless the context otherwise indicates) as undersheriff. On July 26, 1977 the Governor appointed defendant to be a member of the unsalaried Hackensack Meadowlands
Commission, which position he currently holds.*fn1 Defendant has continued to act as an undersheriff and has accepted payment therefor.*fn2
Following a hearing the trial judge entered summary judgment in favor of plaintiff, thereby upholding the latter's thesis that the statute bars undersheriffs to the same extent as it bars sheriffs from holding any other civil office. The judgment required defendant to "choose which civil office he elects to retain." Following defendant's appeal the Supreme Court stayed the judgment pending the determination of this appeal.
The trial judge's ruling was predicated essentially upon the concept that an undersheriff is the alter ego of the sheriff; that undersheriffs' duties are substantially the same as the duties of sheriffs. Consequently, by reason of his interpretation of said statute he held that the evil sought to be avoided thereby made it necessary to consider an undersheriff to be a sheriff within the meaning and intent of the legislative enactment.
We note at the outset that dual officeholding in our State is generally limited by either the common law, on the basis that the respective offices are incompatible with each other, "although neither the Constitution nor the statutes have provided against it," (Clawson v. Thompson , 20 N.J.L. 689 (Sup.Ct.1846); Ahto v. Weaver , 39 N.J. 418, 429 (1963); Reilly v. Ozzard , 33 N.J. 529 (1960); DeFeo v. Smith , 17 N.J. 183, 186-190 (1955)), or by positive mandate of our Constitution or statutes. See DeFeo v. Smith , 31 N.J. Super. 474 (Law Div.1954), rev. on other grds. DeFeo v. Smith, supra.
Consistent with his brief, at the time of oral argument plaintiff agreed that defendant's holding of the two civil offices was not in violation of common-law concepts of incompatibility.
Although the judge recognized that defendant advanced "a legitimate argument [in favor of his position] in view of the statutory history and in view of the statutes that have been subsequently enacted on Sheriff and Undersheriff," he nevertheless held that N.J.S.A. 40A:9-108 prohibited defendant from holding both offices, largely by reason of the holding of Westcott v. Briant , 78 N.J.L. 226 (Sup.Ct.1909). In that case the Supreme Court decided that the dual office-holding of undersheriff and chosen freeholder in ...