Bd. of Chosen Freeholders of Atl. County v. Lee

• Decision Date: 05 September 1908
• Citation: 76 N.J.L. 327,70 A. 925
• Parties: BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY et al. v. LEE.
• Court: New Jersey Supreme Court

70 A. 925

76 N.J.L. 327

BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY et al.

v. LEE.

Supreme Court of New Jersey.

Sept. 5, 1908.

Mandamus, on relation of the board of chosen freeholders of Atlantic county and another, against Edward S. Lee. On demurrer to alternative writ. Overruled, with judgment for relators.

Argued June term, 1908, before REED, BERGEN, and VOORHEES, JJ.

Enoch A. Higbee and H. R. Coulomb, for relators.

Bourgeois & Sooy, for respondent.

REED, J. This is a demurrer to an alternative writ of mandamus. The writ commands Edward S. Lee, the present clerk of Atlantic county, to collect for the sole use of the board of chosen freeholders of Atlantic county, as public moneys belonging to the said board, all fees, costs, perquisites, etc., which the said Lee may receive for any official act or service rendered by him as said county clerk.

The command of the writ is based upon the assumption that the official conduct of Mr. Lee toward the relators is controlled by the provisions of the act of 1906 (P. L. p. 76), the purpose of which act is to put all county clerks upon a salary, and to impose a duty upon such officers to keep an account of all fees and perquisites received by them, to make a statement thereof monthly to the county collector, and to pay over the same to that officer by monthly payments. The demurrer challenges the right of the collector to receive such money, upon the ground that the act of 1906 is not yet operative so far as respects the official conduct of Mr. Lee. This position of the demurrant is grounded upon the language of section 5 of the act of 1906. The clause of section 5 invoked by the demurrant is as follows: "This act shall take effect so far as respects said officers at the expiration of the terms of office of the present surrogates, registers of deeds and mortgages, county clerks and sheriffs respectively." The question propounded by this insistence is whether the term of office of the clerk of Atlantic county in office on March 30, 1900—the date of the approval of the statute—has expired.

The facts are these: Lewis P. Scott was elected to the office of county clerk of Atlantic county at the general election held in November, 1905. He died in November, 1907. Edward S. Lee, the present incumbent, was appointed by Gov. Stokes on December 6, 1907, to fill the vacancy caused by the death of Mr. Scott. Mr. Lee claims that, notwithstanding the death of Mr. Scott, his term of office did not expire until December, 1910. This claim is based upon the language of article 7, § 2, par. 6, of our Constitution, the...