The star and Newark advertiser. [volume] (Newark, N.J.) 1908-1909, 1908-02-13
Dual COunty-City Position Not
Inconsistent, McCarter's
Opinion Holds.
CONSTITUTION AND LAWS
SILENT ON THE QUESTION
AttOrney-General Tells Govern
or There Is No Barrier to
Mans Appointment.
Especial to the Evening start

TRENTON, Feb. 13.-Attorney-Gen-
eral Robert H. McCarter submitted to
Governor John Franklin Fort today his
formal opinion holding that Mayor
Pierre Garven of Bayonne may con-
tinue to serve in that office and also
as prosecutor of Hudson County. The
opinion says:
you have asked my opinion whether
there is any legal impeachment to the
holding of the two offices of Mayor of
the City Of Bayonne me Prosecutor
of the Pleas of Hudson County.
81 have examined the subject, and
beg to advise you that, in my opinion,
there is none; No constitution provis-
ion exists upon the subject, nor am
/ aware of any statute which either
expressly or implicitly prevents prose-
cutors of the pleas from holding an
other office, like that of mayor of a
municipality.
II have examined the charter of the
city of Bayonne with some care, and
find that the only provision which can
be thought to effect the question is
that found in section 10 of the charter,
which provides:
Quotes BnyoDnc Charter.
at shall be the duty of the mayor TO
see that the laws of the State II the
ordinances of the city arc faithfully
executed therein and to recommend TO
the board of councilmen such measures
as he may deem necessary or eXpedl-
emit for the welfare of the city; he shalt
be the head of the city police force, and
as such shall maintain peace and good
order in said city, and shall have power
70 suppress all riots and tumultuous
assemblies and cause to be arrested,
without process or warrant, and to
commit for trial all persons violating,
or who he has reason to believe have
violated the laws of this State or the
ordinances of the city.
"He shall possess the same powers
and authority in criminal cases with
which Justices of the peace are now
invested"
All powers specified in the foregoing
are, 1t seems to me, directly in line of
and are in no way in conflict with the
duties of the prosecutor of the pleas
of the same county in which the
municipality is located, unless it be tho
last phrase giving to the mayor the
mower and authority with which JUS
tices OF the peace in criminal cases are
invested.
Sees No IMPROPERLY.
''Or course, no one should or can, at
the same time exercise such i%nconsist-
emf powers as prosecutor and judge in
the same controversy, and the effect
of the acceptance of the Office of pros
ecutor would be to deprive the incum-
bent. He is at the same time Mayor of
Bayonne of the right to act as a jus
tice of the peace in a criminal matter.
This view, in my judgment, does not
%disqualify him from holding both offices
any more than the obvious improperly
mass,of a judge of n of u courts Of
common pleas from hearing and deter
mining Il case in which he is counsel
disqualiies a member of the bar from
filling that position and practising law
at the same time.
mo common pleas judge has ever
undertaken to perform both functions
and yet technically. Sc far as the eX-
presslons of the statute are concerned,
it would not seem to AVE been inter-
dicted. OF course this is purely an an
alogy and an illustration and served
as an example to illumine the situation.
Il see no reason why o should not
commission Mr.. Garvin, nor why you
should attach thereto as a condition of
its acceptance by him, a promise on his
part TO resign from the Mayoralty of
the city Of Bayonne."