(dissenting). During the nineteenth century, conflicts of interest were widespread and widely tolerated. And although the twentieth century has by no means been free of them, there has fortunately been •much less toleration and much more recognition of the need for curbing them. In 1957 a legislative committee reported to the Senate and General Assembly that it had become increasingly clear that, if our democratic process is to retain its vigorous appeal, its officials must not only discharge their responsibilities faithfully but must also enjoy public confidence that they are doing so, and it made far-reaching recommendations with that thought in mind. See Eisenberg, “Conflicts of Interest Situations and Remedies,” 13 Rutgers L. Rev. 666, 682 (1959). Similarly, our courts have re*554cently stressed that public officials should avoid not only real conflicts of interest but apparent conflicts of interest as well. See Griggs v. Princeton Borough, 33 N. J. 207, 219 (1960); Borough of Fanwood v. Rocco, 33 N. J. 404 (1960); Aldom v. Borough of Roseland, 42 N. J. Super. 495, 502 (App. Div. 1956); cf. Conflict of Interest and Federal Service 17 (1960) : “where public confidence is at issue, what people think is true may be as important as what is true.”
While the case before the court is not strictly concerned with the much discussed actual and potential conflicts between public and private interests, it is concerned with the related (12 Rutgers L. Rev. 582, 587 (1958)) and well established common law principle, recently reasserted by this court in DeFeo v. Smith, 17 N. J. 183 (1955) and Jones v. MacDonald, 33 N. J. 132 (1960), that a public official may not hold incompatible offices. See Mechem, Public Office and Officers, §§ 419-431 (1890); Throop, Public Officers, §§ 30-40 (1892); 3 McQuillin, Municipal Corporations, § 12.67 (3d ed. 1949); 2 Antieau, Municipal Corporation Law 223 (1955); Conklin, “Plural Office Holding,” 28 Ore. L. Rev. 332 (1949). In DeFeo the defendant, a member of the Atlantic County Board of Taxation, was appointed as a member of the County Board of Chosen Ereeholders; the court found that the offices were incompatible and applied the common law principle; in the course of its opinion it had this to say:
“No misbehavior or indiscretions are charged against the defendant. Indeed, he is to be complimented on the existing desire to secure the benefit of his services in more places than one. "Set it is apparent that no man should be in a dual position where there exists the possibility of conflicting interests, despite the admirable manner in which he is presently performing his duties.
The gist of the test and the point to which our inquiry must be directed is the possibility of a conflict in the obligations of the positions in relation to the public interest.
If the duties are such that placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.” 17 N. J., at pp. 188-189.
*555In Jones the court cited and quoted approvingly from DeFeo; it held that the defendant could not lawfully be both a member of the Somerset County Board of Taxation and a councilman of the Borough of North Plainfield; it pointed out that the Borough might be a litigant before the County Board and that it would offend propriety for a man to sit in judgment of his own cause; and in answer to the contention that the situation may never actually occur, it said:
“It is ho answer to say that the conflict in duties outlined above may never in fact arise. It is enough that it may in the regular operation of the statutory plan. ‘If the duties are such that placed in one person they might disserve the public interests, or if the respective offices might or will conflict even on rare occasions, it is sufficient to declare them legally incompatible.’ DeFeo, supra (17 N. J., at p. 189). See 'Wescott v. Scull, supra (87 N. J. L. [410], at p. 418). Nor is it an answer to say that if a conflict should arise, the incumbent may omit to perform one of the incompatible roles. The doctrine was designed to avoid the necessity for that choice. ‘It is immaterial on the question of incompatibility that the party need not and probably will not undertake to act in both offices at the same time. The admitted necessity of such a course is the strongest proof of the incompatibility of the two offices.’ 42 Am. Jur., Public Officers, § 70, p. 936.” 33 N. J., at p. 138.
Many of the earlier New Jersey cases striking down the holding of incompatible offices may be found cited in Wilentz ex rel. Golat v. Stanger, 129 N. J. L. 606, 612 (E. & A. 1943). See State v. Parkhurst, 9 N. J. L. 427 (Sup. Ct. 1802) (Essex County Court Clerk and United States Senator); State ex rel. Clawson v. Thompson, 20 N. J. L. 689 (Sup. Ct. 1846) (New Jersey Attorney General and Salem County Prosecutor); Lofland v. Hilton, 80 N. J. L. 528 (Sup. Ct. 1910) (Burlington County Freeholder and Supervisor of County Roads); Wescott v. Scull, 87 N. J. L. 410 (Sup. Ct. 1915) (Atlantic County Freeholder and Councilman of Sommers Point). In the Stanger case the Court of Errors and Appeals, in an opinion by Justice Case, noted that “incompatibility there certainly was” (129 N. J. L., *556at p. 610) for a state senator to be counsel to the Director of Milk Control but found that counsel to the Director was not an office within the contemplation of the common law doctrine. In People ex rel. Chapman v. Rapsey, 16 Cal. 2d 636, 107 P. 2d 388 (Sup. Ct. 1940), the Supreme Court of California held that a municipal attorney was the holder of an office within the common law doctrine, that he might be required from time to time to prosecute and defend actions by and against the municipality, and that it was clearly incompatible for him to be the municipal judge. See Howard v. Harrington, 114 Me. 443, 96 A. 769, L. R. A. 1917A, 211 (Sup. Jud. Ct. 1916); cf. In re Klaisz, 19 N. J. 145 (1955). In the course of its opinion in Rapsey the court embraced McQuillin’s oft-cited statement that incompatibility within the contemplation of the common law doctrine arises “where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both” and that “the true test is whether the two offices are incompatible in their natures, in the rights, duties or obligations connected with or flowing from them.” See 3 McQuillin, supra, at p. 265. See also Wilentz ex rel. Golat v. Stanger, supra, 129 N. J. L., at p. 611; State ex rel. Clawson v. Thompson, supra, 20 N. J. L., at p. 690.
The opinion by the majority recognizes that a municipal attorney is the holder of an office within the common law doctrine but finds that his office is not incompatible with tiro office of senator. In reaching its conclusion it deprecates the sweep of the court’s expressions in DeFeo and confines the common law doctrine strictly to conflicts of duties. It adopts the view that a municipal attorney is under no duty to his municipality to support or oppose legislative proposals or to engage in any other professional conduct which might come in conflict with his statewide duties as senator. It seems to us that this view wholly ignores the realities and the nature of the professional functions which are incidental and indeed peculiar to the office of municipal attorney; and it flies -in the face of the allegations in the *557complaint which was not controverted by testimony but was dismissed before trial on the defendant’s application for judgment on the pleadings. See Rappaport v. Nichols, 31 N. J. 188, 193 (1959); Evangelista v. Public Service Coordinated Transp., 7 N. J. Super. 164, 167 (App. Div. 1950). The complaint set forth that, upon the call of the township, its municipal attorney was under the duty of (1) representing the township before committees of the Legislature on matters pertaining to legislation in which the township might have an interest, (2) advising the township as to the legal effect of positions taken by it with respect to pending legislation affecting municipalities in general or the township in particular and (3) assisting the township in formulating policies to be pursued by it with respect to pending legislation and in the preparation of communications to members of the Legislature. The complaint also set forth the terms of the township ordinance which provided that its attorney shall serve as its legal adviser, shall represent it in all judicial and administrative proceedings, shall draft or approve all legal documents, shall supervise such additional attorneys as may be engaged, and shall perform such duties as may be necessary to provide legal counsel to the governing body of the township in its administration of the municipal affairs. As Mr. Charles S. Rhyne has properly pointed out in his recent work on municipal law, the municipal attorney is, in addition to the powers and duties ordinarily specified by ordinance, usually called upon to perform “all services incidental to his profession” and may be required “to prepare bills and present them to the legislature.” Rhyne, Municipal Law 95 (1957).
In an article which appeared in the May 1955 issue of New Jersey Municipalities and was entitled ‘‘What I Expect From the Municipal Attorney,” Township Committeeman Ehrlich of Scotch Plains noted (at pp. 31-32) that he expects him to keep informed on all legislative bills since “it is necessary for both the elected Municipal Officials and its Attorney to be ever vigilant in seeing that the acts of *558the legislature are in the best interests of the Municipality we serve”; he stated further that “I expect him to draw any bills that the Municipality may wish to forward to the legislature for its approval and passage into law.” In City Attorneys and Their Salaries, A Study of the Duties and Responsibilities of the City Attorney in Modern Municipalities as Compared with his Compensation (1960), Messrs. Charles S. and Brice W. Rhyne had the following to say (at p. 24) with respect to a city attorney’s functions in the preparation of legislation and the representation of his city before the state legislature:
“(1) Preparation of Recommended Legislation
The City Attorney must be ever careful to determine whether or not there is any state constitutional or legislative provision which prohibits or controls the form and extent of action which his City Council proposes. I-Ie must determine whether new statutory powers are required. Where the need for additional enabling authority is apparent, the City Attorney must set himself to the often delicate task of preparing suggested legislation which will prove adequate from the city’s standpoint and, at the same time, meet with approval in the state legislature.
(2) Representation of City Before State Legislature
The City Attorney is being called upon, more and more, to go to the state capital in furtherance or protection of municipal interests. Certainly, the City Attorney should be present at the meetings of legislative committees holding hearings on any proposed legislation which he has drafted or which affects his city. In many cases, the City Attorney has seen a recommended piece of legislation all the way through the legislative process, from the drafting of the proposed bill to the signing by the governor. This function of the City Attorney, serving as the representative of his city before the state legislature, looms increasingly important as cities grope for new powers enabling them to cope successfully with present-day problems.”
In May v. City of Auburn, 112 Me. 143, 91 A. 177 (Sup. Jud. Ct. 1914), the plaintiff was appointed as city solicitor under an ordinance which, provided for the fixing of his salary and set forth that he shall act as the legal adviser of the city and shall do all professional acts incident to his office or which may be required of him by the city *559Pursuant to a request by the city he prepared a legislative bill and presented the matter on the city’s behalf at a hearing before the judiciary committee of the legislature. He sought extra compensation for this service but the Supreme Judicial Court of Maine held that his service came within the term “professional acts” such as he was bound to perform under the ordinance. In the course of its opinion the court pointed out that the drafting of the act, which related to eminent domain, was not to be expected of a layman but was “a matter for the trained lawyer”; that presentation of such an act to the legislature or a legislative committee “is ordinarily committed not to the layman, but to an attorney”; that while a layman often presents his own matters to such a committee he is rarely employed to present those of another; and that the services which were rendered by the plaintiff were “plainly professional” in nature, concerned the interests of the city, and were duly required of him by the city council. 91 A., at p. 178.
In his relations with the Legislature, the municipal attorney is obligated to advance the interests of his municipality alone, whereas the senator’s concern is for all the municipalities. Oftentimes the individual interests of the municipalities will differ and one need only refer to his daily newspaper to see how intense the differences may become. Urban communities may support a particular policy approach to taxation while rural communities support a wholly different approach; one set of communities may favor a proposed state highway route while another set may vigorously oppose it; and additional illustrations of conflicting approaches and interests, too numerous to list here, may readily be found in the annual legislative bills directly affecting municipalities. Where the senator is not professionally obligated as a municipal attorney he is unrestrainedly free to study and consider opposing municipal viewpoints and thereafter impartially and objectively exercise his best judgment in the discharge of his high responsibilities to all the municipalities and all the people of the State. Where, however, *560he is thus professionally obligated he is not free or, in any event, the public will so believe and serious impairment in public confidence will result. This should be avoided, as it would be, by sympathetic application of the common law doctrine.
Our sights must be set high and our course must be fixed true. When our judicial predecessors announced the common law doctrine they did so on the basis of prevailing conditions and considerations of public policy and mores. It should now be applied fairly and conscientiously in the light of current conditions and considerations and in that light it appears evident to us that the offices of municipal attorney and senator are incompatible. The responsibility of so declaring them within the common law doctrine is a judicial one which may not properly be disavowed or remitted to others. See Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 403 (1960); Smith v. Brennan, 31 N. J. 353, 361 (1960); Faber v. Creswick, 31 N. J. 234, 241 (1959); Collopy v. Newark Eye and Ear Infirmary, 27 N. J. 29, 41 (1958); State v. Culver, 23 N. J. 495, 505 (1957).
We vote to reverse.
For affirmance — Chief Justice Weintraub, and Justices Francis, Pboctor and Hall — 4.
For reversal — Justices Jacobs and Schettino — 2.