Reilly v. Ozzard

The opinion of the court was delivered by

Weintraub, C. J.

The ultimate question is whether the common law doctrine prohibiting dual holding of incompatible offices bars a member of the State Senate from holding the post of township attorney. The trial court held the doctrine inapplicable. We certified the ensuing appeal upon our motion before the Appellate Division acted upon it.

I.

We must first consider constitutional objections advanced by defendant. One is that since the Constitution defines eligibility for membership in the Legislature (Art. IV, § I, par. 2), no further requirement may be added, Imbrie v. Marsh, 3 N. J. 578 (1950), and an application of the common law doctrine to a member of the Legislature would have that forbidden effect. Another is that, if the common law doctrine does apply, nonetheless the Judiciary may not act since each house of the Legislature is “the judge of elections, returns and qualifications of its own members” (Art. IV, § IV, par. 2) and has the power of expulsion (Art. IV, § IV, par. 3).

A.

The claim that dual officeholding by legislators may not be barred under the common law doctrine because the Constitution specifies qualifications for membership goes beyond questioning an application of that doctrine. If sound, the objection would block as well statutory regulation of the subject. So, for example, R. S. 19:3-5, which prohibits certain officeholding by legislators, would be invalid to the extent that it exceeds the express constitutional limitations upon dual officeholding by legislators (Art. IV, § V, pars. 1, 3, and 4). We refer to the sweeping import because the very reach of the claim easts doubt upon it.

An individual does not move beyond the restraints of law, common or statutory, when he accepts membership in the Legislature. He remains subject to them except insofar as they preclude acceptance of legislative office by one constitutionally qualified for it or impair performance of legislative duties. Prohibiting a legislator to hold another office neither denies eligibility for legislative membership nor frustrates the discharge of the duties of a legislator. Eligibility for office is one thing; the right to pursue governmental activities extraneous to the office of legislator is something else. Cf. In re Hess, 128 N. J. L. 387 (Sup. Ct. 1942).

B.

We do not doubt the jurisdiction and duty of the courts to decide controversies of this character. A judicial determination that a legislator may not hold another office does not trench upon the authority of each house to judge the elections and qualifications of its members or to expel them. Again, the reach of the objection should be noted. If it were sound, it would bar as well judicial enforcement of a statutory restriction, such as contained in R. S. 19:3-5, since with respect to a court's power to act there can be no distinction between a statutory prohibition and a common law one.

We think the issue was settled in Wilentz ex rel. Golat v. Stanger, 129 N. J. L. 606 (E. & A. 1943). It is urged that case dealt only with the enforcement of a constitutional provision. Emphasis is placed upon the concluding reference to the court's “supreme authority to decide the constitutional questions” (p. 617). The case in part dealt with the constitutional provision for the separation of powers distributed among the branches of government and hence the quoted statement was made. But the court did not confine its jurisdiction to constitutional interpretation. On the contrary, the court there considered and decided the issue of common law incompatibility. We see no room in the judicial article of the Constitution, Art. VI, § I et seq., to distinguish between enforcement of a constitutional provision and enforcement of a non-organic provision. If the Senate were the exclusive judge of one, it would also be of the other. The Judiciary is competent to deal with both or neither.

We can find no grant to the Senate of exclusive authority to deal with the external activities of its members. Nor is it to be implied by necessity to assure the Senate the independence its members need to discharge their assigned role in government. On the contrary, it appropriately rests within the jurisdiction of the whole Legislature to legislate upon the subject, and within the jurisdiction of the Judiciary to enforce such restraints as statutes or the common law may validly prescribe.

C.

The constitutional objections had another facet when the matter was before the trial court. As the facts then were, defendant had first been elected to the Senate and thereafter had accepted the post of township attorney. Under the conventional statement of the common law doctrine, acceptance of the later office vacates the earlier. Kobylarz v. Mercer, 130 N. J. L. 44, 46 (E. & A. 1943). Defendant contended that his office of senator could become vacant only for causes specified in the Constitution and that dual office-holding violative of the common law doctrine was not one of them. Pending appeal, defendant was re-elected senator and hence the post of township attorney became the earlier one. Thus the doctrine, if applicable, would now jeopardize the municipal post rather than the legislative one. Hence the question whether the office of senator could be declared vacant left the ease. Defendant nonetheless presses it upon this appeal. We see no barrier to a suitable remedy if the dual officeholding presents the evil the common law denounced. Should the Constitution protect against loss of the legislative office, the legislator would be barred from holding another incompatible office. It is a simple matter to shape the relief to avoid a constitutional difficulty if there be one. Cf. Monaghan v. School Dist., 211 Or. 360, 315 P. 2d 797, 799 (Sup. Ct. 1957).

D.

Next, defendant contends the Constitution itself exhausts the subject of dual officeholding by legislators and thus supersedes any common law doctrine which otherwise might have applied. Reference is made to several provisions.

Article III, par. 1 reads:

“1. The powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.”

More specifically, Article IV, § V, par. 3 provides:

“3. If any member of the Legislature shall become a member of Congress or shall accept any Federal or State office or position, of profit, his seat shall thereupon become vacant.”

And par. 4:

“4. 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.”

Defendant says the post of township attorney is not a "State office or position” (emphasis added) within the meaning of these provisions, and plaintiff does not disagree. Defendant points out that the Convention received specific proposals that legislators be barred from holding office under local government (3 Constitutional Convention of 1947, pp. 689, 851, 898) and a monograph upon the subject expressly referred to a provision in the constitution of Arizona to that effect (Vol. 2, p. 1477). In this setting, defendant urges the Constitution deals completely with the problem and bars any further restraint upon dual officeholding by members of the Legislature.

The most that can be said from the record of the Convention is that a more sweeping ban was suggested but not accepted. We see no basis to invoke the maxim, expressio unius est exclusio alterius. The maxim at best is a mere aid to interpretation. Perhaps more accurately, it usually serves to describe a result rather than to assist in reaching it. The final question is whether in a given context an express provision with respect to a portion of an area reveals by implication a decision with respect to the remainder. The issue is one of intention. The answer resides in the common sense of the situation.

A constitution does not resolve all policy problems. Rather it establishes the framework of government with such specific restraints as are thought to be of eternal, value and hence worthy of immunity from passing differences of opinion. If the sense of the situation suggests that an affirmative specification was meant to be exclusive, as, for example, a statement of the qualifications for office, no more may be added. Imbrie v. Marsh, supra, 3 N. J. 578 (1950). On the other hand, for further example, the fact that the Constitution assures absentee voting by military personnel does not deny the Legislature a voice in the policy question whether a like opportunity should be granted to civilian absentees. Gangemi v. Berry, 25 N. J. 1 (1957).

Where, as here, the constitutional provision is prohibitory in nature, it surely can not mechanically be inferred that what was not prohibited was thereby affirmatively guaranteed. The decision to prohibit is simply a decision to foreclose a contrary view as to the area dealt with. What is left untouched remains within the jurisdiction of government. Here the Convention determined, and the people agreed, to bar dual officeholding within the stated terms. They did not thereby ordain that all other officeholding by legislators shall be constitutionally protected.

It may be added the proposition advanced would prevent restrictive action by the Legislature itself, and would invalidate R. S. 19:3-5, referred to above, to the extent to which it exceeds the ban of the constitutional provisions. Although the aim of the argument is to disable the Judiciary from applying the common law, the assault can not be thus confined. The matter is either frozen by the Constitution or remains subject to law, be it statutory or common.

It is convenient to consider at this point the claim that B. 8. 19 :3-5 exhausts the subject. The statute reads in part:

“No person shall hold at the same time more than one of the following offices: elector of president and vice president of the United States, member of the United States senate, member of the house of representatives of the United States, member of the senate or of the general assembly of this state, county clerk, register, surrogate, sheriff or coroner.”

It has been held that this enactment did not authorize dual oificeholding beyond the terms of its interdiction and thus erase the common law doctrine. Kobylarz v. Mercer, supra (130 N. J. L., at p. 48). There involved were the office of mayor and a military office. It is true the statute speaks specifically of a member of the Legislature and hence there is more apparent substance to reliance upon it in the present case. But again, the Legislature merely prohibited what it found to be contrary to the public weal, and perhaps did so without regard to whether the offices were incompatible under the common law. We can not say the Legislature thereby intended to abolish the common law elsewhere by implication.

II.

Hence we reach the issue whether the office of senator and the post of township attorney are incompatible under the common law.

A.

It is contended the doctrine applies only to “offices” and the post of township attorney is not of that character.

That the doctrine is limited to “offices” was held in Wilentz ex rel. Golat v. Stanger, supra (129 N. J. L. 606). Plaintiff argues with much force that distinctions separating “office” from “position” and “employment,” even if useful in other situations, are here inappropriate. Glasser, “A New Jersey Municipal Law Mystery: What Is a ‘Public Office’?,” 6 Rutgers L. Rev. 503, 504 (1952). The reasonableness of a classification depends upon the objective. Women may be differentiated from men in matters of health but not with respect to larceny or drunken driving. The question is whether the public evil which the doctrine of incompatibility was designed to meet is any less because one of the posts is other than an “office.” The question would be in perspective if a governing officer of a municipality claimed the right to serve under his own direction in another municipal post upon the thesis that it was something less than an “office.” Parenthetically it may be noted that, doubtless in response to Stanger, Article IV, § V, pars. 1, 3, and 4 of the present Constitution speak of “office or position” (emphasis added) whereas the Constitution of 1844 (Art. IV, § V, pars. 1 and 3) spoke merely of “office.” We need not however pursue the matter since, as we shall presently develop, the post of township attorney is an “office” within the purpose of the doctrine.

B.

It is argued that from the nature of his profession an attorney can be only an independent contractor. Reliance is placed upon Ewart v. Commissioner, 98 F. 2d 649 (3 Cir. 1938). The court held that upon the record before it the attorney there served the municipalities as an independent contractor. The context was liability to federal income taxation. The case does not hold the inherent nature of an attorney’s service is such as to preclude the creation of an office for their rendition. True, in the general practice an attorney is ordinarily an independent contractor, but in both public and private affairs he may assume another relationship. Attorneys are commonly employed as house counsel by corporate employers. So in the public domain, although an attorney may be engaged in individual matters as an independent contractor, yet he may assume another status. Government needs professional services of many types, legal, medical, engineering, and if the need is sufficient to induce the creation of a post for their rendition, the incumbent is not an independent contractor merely because the services are professional in nature. Surely the Attorney General and the county prosecutor are not independent contractors. They hold office. State ex rel. Clawson v. Thompson, 20 N. J. L. 689 (Sup. Ct. 1846).

The definition of an office depends upon the context. See 2 Antieau, Municipal Corporation Law (1955), § 13.00, at p. 209. For present purposes, it may be sufficiently defined as a post created or authorized by constitution or statute for the continuous exercise of a portion of governmental power or authority. See Thorp v. Board of Trustees of Schools for Industrial Educ., 6 N. J. 498, 507, vacated as moot, 342 U. S. 803, 72 S. Ct. 35, 96 L. Ed. 608 (1951). That the post of township attorney partakes in some degree of political power or governmental authority seems clear. The role of the lawyer is threaded throughout government. It includes advice, the preparation of indispensable instruments, and the prosecution of the civil and criminal business of the public. The need is so apparent that the Legislature either directed or authorized the creation of a legal post in local government. And in so doing it has consistently characterized the post as an “office.” See R. S. 40:21-59 and N. J. S. A. 40:21-60 (counties); R. S. 40:46-4 and N. J. S. A. 40:46-14 (municipalities generally); N. J. S. A. 40:81-11 (municipal government); N. J. S. A. 40:87-15 (boroughs); N. J. S. A. 40:125-1 (towns); R. S. 40:145-12 (townships); R. S. 40:158-7 (villages); R. S. 40:171-47, 48, 113, 114, 148, 195 (cities). It has affirmatively imposed a duty upon the municipal attorneys to prosecute specific violations. See R. S. 39:5-20, as amended; N. J. S. A. 51:9—11. We see no reason to deem the statutory description of the post as an “office” to be ineffectual. Indeed our cases also so describe it. State v. Weleck, 10 N. J. 355 (1952) and cases collected in Glasser, op. cit. supra, 6 Rutgers L. Rev., at p. 522 n. 50. Stanger, supra, is not to the contrary. Although the post was there held not to be an “office,” yet the court recognized that “the place of legal adviser to a public body may, by suitable statutory provision and endowment with sovereign duties and other appropriate indicia of rank in the public service, be constituted as an office,” (129 N. J. L., at p. 615). And the weight of authority elsewhere holds the municipal attorney to be an officer Rhyne, Municipal Law (1957), § 8-2, at p. 118.

We see no reason to deny the post the status of an office within the purpose of the doctrine of incompatible offices. If a member of a governing body attempted simultaneously to serve in the subordinate role of municipal attorney, quite obviously there would arise the evil at which- the common law doctrine was aimed. A municipal attorney was hold an officer within the common law doctrine in People ex rel. Chapman v. Rapsey, 16 Cal. 2d 636, 107 P. 2d 388 (Sup. Ct. 1940).

C.

We come accordingly to the question whether the office of municipal attorney is incompatible with the office of senator. Incompatibility is usually understood to mean a conflict or inconsistency in the functions of an office. It is found where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another. Jones v. MacDonald, 33 N. J. 132 (1960); Annotation 1917A L. R. A. 216. There is no conflict between senator and township attorney-in any of the conventional applications of the doctrine. The legislature has no power in any judicial, executive or administrative sense to interfere with, supervise or review the performance of an incumbent in local office. Nor does it have the power to appoint to or to remove from local office.

Plaintiff suggests a conflict in duties would arise whenever legislation is considered which may affect the interests of the municipality. The assumption is that the municipal attorney, as such, has a duty to lobby, which duty would conflict with the duty to legislate.

Lobbying is not a part of the practice of law. Although Canon 26 of the Canons of Professional Ethics contemplates an attorney “may render professional services before legislative or other bodies, regarding proposed legislation” and regulates his behavior if he is so engaged, it does not follow that such activity constitutes the practice of law. Not infrequently an attorney is engaged for services beyond his professional franchise. He may lawfully render such services, not because they are part of the practice of law, but rather because an attorney is not restricted to the practice of his profession. So, although an attorney may be engaged to address the Legislature, the practice of law does not embrace an exclusive right to advocate or oppose bills in the legislative precincts. Hence lobbying is not a duty of a municipal attorney merely because he is an attorney.

That local government has the right to seek or to oppose legislation affecting its interests is settled. City Affairs Committee of Jersey City v. Jersey City, 134 N. J. L. 180 (E. & A. 1946); In re Carrick, 127 N. J. L. 316 (Sup. Ct. 1941). Whether a municipality is under a duty to do so is another matter, and whether that duty, if it exists, attaches to a specific office in local government, we need not inquire. It is enough to say that it is not inherently a lawyer’s role and that in the present case the ordinance defining the duties of the township attorney does not impose that obligation and we know of no statute which does.

We do not suggest a legislator may accept an engagement for pay on behalf of a municipality to introduce or oppose legislative proposals. Quite obviously a legislator, whether or not a lawyer, could not lawfully be so engaged by any interests, public or private. And if the office of municipal attorney (or any other local office) were specifically charged with the duty thus to lobby, that obligation would plainly be incompatible with the duty of a legislator and would bar dual holding of the offices. Here, however, the office of township attorney does not hold that duty and hence defendant does not face the prospect as legislator of passing upon a position advanced in discharge of a duty of his other office.

It is here appropriate to explore the theme of the dissenting opinion to be filed in this matter. The dissent starts with a discussion of the subject of conflict of interests as distinguished from conflict of duties. It quotes a passage from DeFeo v. Smith, infra (17 N. J., at pp. 188-189), in which successive paragraphs speak of “the possibility of conflicting interests” and “the possibility of a conflict in the obligations of the positions in relation to the public interest.” (Emphasis added) The dissent does not suggest DeFeo holds a possible conflict of interests results in incompatibility of offices at common law, and quite clearly DeFeo did not intend to convey that thought. The question was not involved, and the case turned upon a finding of a conflict in duties.

The dissent here does not conclude, as we read it, that a possibility of a conflict of interests results in incompatibility of offices. We will discuss that subject more fully in “D” below. That a possible conflict of interests inheres in the present scene is obvious. It, however, is by no means indigenous to the roles of legislator and municipal attorney. On the contrary, it inheres in any local officeholding by a legislator. Indeed it is more pronounced if the legislator holds a local office which has the authority to make the policy decision to seek or to oppose legislation, a power which does not repose in the municipal attorney. It exists also with respect to the possible direct impact of legislation upon a local office itself, a possibility equally evident if the legislator be a municipal attorney or a school teacher or an assessor or a member of a planning board, etc. Even local residence (not required of a municipal attorney, N. J. S. A. 40:46-14) spells out a possible conflict of interests if the welfare of the municipality should become pitted against the welfare of others in the county or state. On occasions a judge will decline to sit in a case involving the municipality in which he lives although that circumstance is not legally a disqualifying one.

If the possibility of a conflict of interests were the touchstone for decision, the office of municipal attorney would be indistinguishable from any other local office. The dissent, as we have said, does not adopt that test, but rather adheres to the standard we apply. It is in the application of that standard, i. e., a conflict of duiieSj that the opinions in this case part company.

The dissent finds a conflict in the duly of a municipal attorney with the duly of a legislator in these respects: (1) rendition of legal advice to the municipality, (2) drafting of proposed legislation, and (3) the processing of bills in the legislative hall.

As to the first, we are unable to detect any conflict between the duty to legislate and the duty to advise with respect to the meaning of bills or statutes.

As to the second, many bills are prepared and perhaps most are redrafted routinely by the Division of Law Revision and Bill Drafting, a part of a legislative agency (L. 1954, c. 254, § 13c; N. J. S. A. 52:11-18c), at the behest of individual legislators. Doubtless, however, some are prepared by the municipal attorney and we agree it is his duty to do so if his superiors so direct. But if he should draw a bill, there is no conflict with the duty of a legislator. The conflict involved in legislation revolves about the policy issue which a bill projects, and as to that issxte the authority to decide to advocate or oppose legislation clearly is not within the office of the municipal attorney. He acts only after the policy decision is made by others; and as the draftsman of the bill he is no more the author of the policy than is an attorney who prepares a last will and testament upon a plan of disposition his client prescribes. Just as the draftsman of a will may deplore the testator’s wishes, so a municipal attorney may disagree with the policy decision he is asked to embody in a proposed bill. Surely a municipal attorney could not refuse to draft a lawful document merely because he disliked the policy decision of his superiors. The point is that the duty to act as a scrivener is not incompatible with a legislator’s duty to pass upon the merits of a bill. If the dissent means that a municipal attorney may feel some compulsion to prefer his client’s interests when he acts as legislator, we of course agree the possibility is evident, but it is no more or less so whether the bill is prepared by the attorney or by someone else. That conflict is one of interests, and it springs from his connection with the mxxnicipality rather than from a duty to act as scrivener of a bill, and in kind is no different from the conflict which any local officeholding ox-employment may induce in a legislator.

Finally the dissent finds it is the municipal attorney’s duty to represent his client in the legislative process. It obviously is not the attorney’s duty to introduce a bill; indeed he has no power as attorney to do so. And with respect to persuading legislators for or against a bill or appearing at legislative hearings (a rare event in our State), the function is not inherently that of an attorney and hence is not impliedly the obligation of that office. It is commonplace for a mayor or other local official to assume that role, and we think it quite plain that such official could not be adjudged guilty of illegal practice of the law if he be not a lawyer. Anyone familiar with the scene at the State Capitol knows that private interests (and associations of public employees) frequently select non-lawyers to lobby for them. As we have already said, that role may be assigned to the municipal attorney (or to another local officer), and if it is, that office would then become incompatible with the office of legislator, but the duty not being the inherent obligation of the attorney’s office, incompatibility in terms of duties cannot be found in the absence of an assignment of that obligation to that office.

Hence we are satisfied that here the possibility of a conflict lies in the area of interests rather than in the duties of office. If the common law prohibited local officeholding by a legislator because of the possibility of a conflict of interests, a remedy exists and it is within the authority of the courts to enforce it. If however the common law ban did not reach the subject, then the Legislature alone can cut the knot; the court could but nibble at it in those instances in which the possibility of some incidental conflict of duties might be detected. The court should act if a conflict of that kind appears even at the periphery of a particular scene, but we should be satisfied that at least a slender reed does exist. It is well to be mindful that an indirect approach to the basic problem of conflict of interests may hinder a forthright solution, for if it suggests to others that a solution is already on hand, it may obscure the responsibility of the legislative branch to deal with the total problem in a comprehensive and decisive manner.

D.

Although plaintiff rests his attack upon a claim of conflict in duties of the offices, the argument before us branched into the larger question, whether under the common law a legislator may hold any local office in view of a possible conflict of interests with respect to legislation affecting either his office or the municipality’s welfare.

A ready answer can not be found in the traditional definition of the common law doctrine. As we have said, the doctrine in its specific applications has been applied to incompatibility in the functions or duties of office. The doctrine, however, is also expressed more vaguely to embrace an “inconsistency of nature, duty, or function which, from considerations of sound policy, cannot be lodged in one and the same functionary at one and the same time.” DeFeo v. Smith, 17 N. J. 183, 187 (1955) (emphasis added). Does a possibility of a conflict in interests come within the concept ?

This much is clear. The doctrine does not denounce all dual officeholding. “Dual officeholding, as such, is not forbidden by the common law. Incompatibility is an essential ingredient of the doctrine.” Kobylarz v. Mercer, supra (130 N. J. L., at p. 46).

There is a difference between the subject of incompatible offices and the subject of conflict in interests. In the former, a clash of duties inheres in the very relationship of one office to the other and is contemplated by the scheme of governmental activities, albeit the occasions may be rare. The consequence will be the nonperformance (or the questionable performance) of one or the other of the prescribed duties. On the other hand, a conflict in interests by virtue of a dual officeholding by a legislator will not inevitably arise as an incident of the relationship of the two offices. It may arise depending upon what bills are introduced. If it should, the incumbent is not put to a choice of duties. Rather the conflict relates to the duty of one office, the legislative seat. It is true that, if a conflict of interests should arise, it may cast a cloud upon the objectivity of the exercise of legislative discretion. Yet the possibility of a conflict of interests is not peculiar to the case of duality of offieeholding by a legislator. Rather it is part of a larger problem which inheres in the nature of the legislative authority and confronts all members of that department of government. This is so because the police power and the taxing power range so widely that every legislator, whether he be in a private calling or in another public post or in neither, must inevitably have some interest which may conceivably be affected by some legislative proposal at some time.

We are not discussing the effect of an actual conflict of interests. Plainly the common law dealt with that subject and forbade an officer from acting in a particular matter permeated by an actual conflict. See, for example, Griggs v. Princeton, 33 N. J. 207 (1960). Rather, the question is whether the common law forbade the holding of office because of a possibility of a future conflict of interests. As we have said, the possibility of a conflict of interests is inevitable in a legislator. Of course conflicts of that kind vary in intensity from the distant and inconsequential to the immediate and severe. And it may well be that public policy warrants excising from the total scene the possibility of a conflict of interests generated by additional public office-holding and employment. Indeed in some jurisdictions, organic law expressly forbids a legislator to hold local office. We referred above to the constitution of Arizona. See also Goodloe v. Fox, 96 Ky. 627, 29 S. W. 433 (Ct. App. 1895); cf. Padron v. People of Puerto Rico ex rel. Castro, 142 F. 2d 508 (1 Cir. 1944), certiorari denied, 323 U. S. 791, 65 S. Ct. 427, 89 L. Ed. 630 (1945). And as we have already said, our Legislature, which is the ultimate authority with respect to this issue, may constitutionally prohibit it. The question before us, however, is not whether it is unsound for a legislator to hold local office but rather whether the common law doctrine of incompatibility reached into the area of possible conflicts of interests and forbade such dual officeholding because of it.

No precedent in our State suggests a legislator is barred from local office by the common law doctrine. Elsewhere there is little discussion of the subject. In New York, it was expressly held there is no common law incompatibility. People ex rel. Ryan v. Green, 58 N. Y. 295 (Ct. App. 1874); People ex rel. Gilchrist v. Murray, 73 N. Y. 535 (Ct. App. 1878); Stewart v. Mayor, etc., of City of New York, 15 App. Div. 548, 44 N. Y. S. 575 (App. Div. 1897). A contrary conclusion was reached by a majority of the court in Weza v. Auditor General, 297 Mich. 686, 298 N. W. 368 (Sup. Ct. 1941). There the office of county school commissioner was held to be "subordinate” to that of a member of the legislature because (298 N. W., at p. 368):

“The former owes its creation and continuation to legislative enactment and is completely subject to legislative control [as to eligibility, duties and emoluments]. Further, as a matter of sound public policy these two offices should be held incompatible. If a controlling faction in the legislature was composed of county school commissioners, it is conceivable that the legislature might materially increase salaries of county school commissioners, enlarge their powers, or diminish their duties.”

Yo authority was cited to support the proposition that the office is "subordinate” to the office of legislator as the term is used in the statement of the common law doctrine. There surely is neither subordination nor control in any executive, administrative, or judicial sense. The dissenting opinion, applying the usual test of repugnancy or inconsistency in the functions of offices, held the common law doctrine inapplicable. The case seems never to have been cited.

It is not disputed that historically legislators in our State have held local office as some now do. If illegality were clear, prior practice could not excuse it, State ex rel. Rogers v. Taggart, 118 N. J. L. 542, 547 (Sup. Ct. 1937), affirmed 120 N. J. L. 243 (E. & A. 1938), but in ascertaining the sweep of a common law doctrine of uncertain limits, we can not wholly ignore what transpired without challenge, especially since the facts were necessarily known and political motivation to question is rarely lacking. We know of no instance in our State in which it was suggested that under the common law a legislator may not hold a local office. This thesis did not occur to plaintiff. And we note that in Rogers v. Taggart, supra, in which it was held that a judge of the recorder’s court could not also hold a legislative seat because he was a judge “of any court” within Article IV, § V, par. 3 of the Constitution of 1844, it apparently was assumed that a local office, if non-judicial in character, would be another matter. At least the contrary thought was not advanced even though it would appropriately have been an alternative response to defendant’s thesis that his office of recorder was a municipal one and hence not a “court” within the meaning of the constitutional provision. So, too, in State ex rel. Robibero v. Hillery, 137 N. J. L. 96 (Sup. Ct. 1948), in which there was raised, but not decided, the question whether an assemblyman may hold the office of mayor under the constitutional provision discussed in Taggart, no mention was made of the common law doctrine as a possible basis for attack. Eurther, if a possibility of a conflict of interests had been understood to bar a legislator from any office which may be affected in its being, duties or emoluments, there would have been no need for R. S. 19:3-5 to restrict officeholding by legislators. And in other jurisdictions in which the state constitution or statute was held not to bar legislators from local office, the possibility that the common law might be a barrier was not discussed. Carpenter v. People ex rel. Tilford, 8 Colo. 116, 5 P. 828 (Sup. Ct. 1885); Commonweath ex rel. Woodruff v. Joyce, 291 Pa. 82, 139 A. 742 (Sup. Ct. 1927); Phillips v. West, 187 Tenn. 57, 213 S. W. 2d 3 (Sup. Ct. 1948); Boswell v. Powell, 163 Tenn. 445, 43 S. W. 2d 495 (Sup. Ct. 1931); cf. State ex rel. Baca v. Otero, 33 N. M. 310, 267 P. 68 (Sup. Ct. 1928).

The evidence of the understanding of bench, bar and legislators discussed in the preceding paragraph of course does not reveal positive determinations that the common law doctrine is inapplicable. But the question is not whether precedents can be found which deny the common law doctrine applied, but rather whether there is reliable evidence that it did; and in that inquiry, the negative circumstances to which we have referred significantly support our conelusion that there is no substantial evidence that the common law doctrine embraced the situation before us.

The matter is of obvious public interest and hence we should add a word about the respective responsibilities of the several branches of government under our Constitution. Except as to offices created by the Constitution, public offices and employments are ultimately the creatures of legislation. The Legislature alone may determine the duties and the interrelation of the public posts it establishes or authorizes to be established. Within the constitutional framework, the Legislature is the architect of the structure of government. The Judiciary has no creative power in that area. The court’s function is to enforce prohibitions fashioned by statute or by the common law. Whether a further ban would be wise or unwise is not a subject upon which we may properly venture a view, and this opinion should not be understood to do so. We hold only that the common law did not bar the dual officeholding involved in this case, and that the question whether it should be barred in the public interest reposes in the power and responsibility of the legislative department.

The judgment is affirmed.