(dissenting as to Weaver): The common law doctrine against the holding of incompatible offices was high-minded and clearly furthered the public interest. It was implemented in this court by a line of decisions which, for the most part, construed it sympathetically and in strengthening fashion. In Jones v. MacDonald, 33 N. J. 132 (1960), it was invoked where the defendant sought to continue in both the office of county tax board member and the office of borough councilman, and more recently in McDon-ough v. Roach, 35 N. J. 153 (1961), it was applied to strike down the incompatible holding of the offices of county freeholder and township mayor. In the McDonough case, reference is made to some of the instances in which the county must deal with the municipalities within its borders and in which conflicts would necessarily arise if members of the board of freeholders were also members of particular municipal governing bodies.
Good sense dictates that the common law prohibition, as found in McDonough, be considered equally applicable to the county counsel. He is the duly designated legal adviser of the county and his important duties and functions, which are of a continuing nature, include not only the giving of legal advice but the preparation of necessary instruments and the prosecution and defense of county litigation. It is true that ultimate policy determinations are those of the board rather than its legal adviser, but it would be wholly unrealistic to suggest that the county counsel is entirely excluded from the molding of such determinations. Indeed, when county litigation is involved, policy considerations will necessarily merge with legal judgments in the county counsel’s recommendations to the board.
In any event, it would be difficult to justify the distinction in the eyes of the public and particularly the residents of a municipality where its interests have been adversely affected by action of the board favoring another municipality, the mayor of which is the county counsel. In applying the common law doctrine it must be borne in mind that public con-*434fidenee demands that there be the appearance as well as the actuality of impartiality and undivided loyalty. The dissenting opinion in Reilly v. Ozzard, 33 N. J. 529, 553 (1960), sets forth the compelling factors which led us to the view that, under the common law doctrine, a municipal attorney could not properly hold the office of state senator. See Editorial, The Ozzard Case, In Broad Context, 84 N. J. L. J. 4 (1961). Here, comparable factors satisfy us that the county counsel could not, under the common law doctrine, properly hold the office of mayor of a municipality within the county.
The majority opinion does not go so far as to hold that it would be compatible for the mayor of a municipality to be county counsel. Instead it advances the view that even if the county counsel is deemed disqualified from holding the office of mayor, his assistant is not so disqualified. This highly restrictive interpretation of the lofty common law doctrine disregards its motivating purposes and the precedents which have heretofore applied it to deputies and assistants along with their supervisors. See Knuckles v. Board of Education of Bell County, 272 Ky. 431, 114 S. W. 2d 511 (1938); State v. Goff, 15 R. I. 505, 9 A. 226 (1887). The important public considerations which oppose the dual holding of the offices of mayor and county counsel appear to us to apply largely to the dual holding of the offices of mayor and assistant to the county counsel. Analogically, it may be noted that in our own court rules, the prescribed disqualifications have widely and wisely been applied to assistants and their superiors alike. See R. R. 1:26-4; cf. R. R. 1:25B; R. R. 1:250; R. R. 1:26.
It is suggested that in the instant matter the assistant will not be permitted by his superior to participate in any matter which affects the municipality of which he is mayor. But that is not enough, for his very holding of the offices entails the evils which the doctrine seeks to obviate. In Jones v. MacDonald, supra, the defendant likewise suggested that he would not participate in any matter in which his municipality *435was involved. This was met by the court in the following language:
“It is no 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.
In December 1962 the Legislature adopted a statute which was designed to eliminate the common law doctrine in part. L. 1962, c. 173. We believe, as does the majority, that the legislative enactment is not unconstitutional and that it serves to immunize Mr. Klein’s dual holding of his two elective offices. But the Legislature did not immunize Mr. Weaver’s holding of his elective municipal office and his appointive county office, and as to his situation, the common law doctrine remains in full force and effect. The doctrine was soundly established in furtherance of the public interest and to the extent that the Legislature has permitted it to remain, it should be applied by us not narrowly, but broadly towards fair fulfillment of its highly desirable goals. We vote to affirm as to Klein and to reverse as to Weaver.
For affirmance — Chief Justice Weintraub, and Justices Erancis, Proctor, Hall and Haneman — 5.
For affirmance in part and reversal in part — Justices Jacobs and Schettino — 2.