State v. Applegate

• Decision Date: 20 November 1888
• Citation: 51 N.J.L. 117,16 A. 59
• Parties: STATE ex rel. SHUMAR v. APPLEGATE, County Auditor.
• Court: New Jersey Supreme Court

16 A. 59

51 N.J.L. 117

STATE ex rel. SHUMAR

v. APPLEGATE, County Auditor.

Supreme Court of New Jersey.

November 20, 1888.

(Syllabus by the Court.)

Application for writ of mandamus.

On rule to show cause why a mandamus should not be issued. The relator applies for a writ of mandamus to compel the defendant, auditor of the county of Monmouth, to audit, adjust, allow, and certify to the county collector for payment, three bills rendered by him for fees, costs, and services as justice of the peace in said county, in criminal cases. Exhibit A contains charges under the act concerning disorderly persons, (Revision, 303,) in January, 1888, amounting to $7.50; Exhibit B charges under the act for suppressing vice and immorality, (Id. 1227,) in February and March, 1888, amounting to $57.46; Exhibit C, like charges under the latter statute, in March and April, 1888, amounting to $20.38.

Argued before SCUDDER and REED, JJ.

G. C. Beekman, for relator. J. Clarence Conover, for defendant.

SCUDDER, J., (after stating the facts as above.) The respondent, auditor of the county, has refused, on presentation to him of these three several bills, to audit and certify them to the collector for payment, because it appears, as he alleges, by the records of the justice of the peace, these statements made by him, and the witnesses examined, that all of the persons charged and convicted before him were tramps, and should have been arrested and tried under the "Act to define and suppress tramps," (Revision, 1208, and Supp. Revision, 1083;) that the purpose of proceeding under the other statutes was to make the constable a witness, and the only necessary witness, and to increase the fees and expenses by collusion between him and the justice. These officers deny that there was any fraudulent purpose, and claim that, according to the complaints made and the facts shown, all persons arrested and convicted were disorderly or drunk by the excessive use of spirtuous liquor, within the descriptions contained in these statutes. The fees that may be taxed under the vice and immorality act are greater than those allowed by law in the other statutes, and are fixed by the supplement to the act constituting courts for the trial of small causes (Revision, p. 565, § 139) as the same fees for like services in other criminal cases. Under the disorderly persons act and by the tramp act the fees are the same,—25 cents to the justice of the peace, and 50 cents to the constable or police officer making the arrest. The proofs are also different. When the complaints and convictions were made under the act concerning disorderly persons, the oath of the officer was sufficient to convict the person arrested; but by the supplement to that act, passed March 26, 1888, (Laws, 247,) the oath or affirmation of one or more credible witnesses, other than the officer making the arrest, is required to convict. It now agrees with the tramp act, where like witness or witnesses are prescribed for conviction. Under the vice and immorality act the officer making the arrest is both competent and sufficient, and a witness fee is claimed for him in each case. These are the principal facts on which the auditor bases his refusal to audit and allow these bills presented by the relator, and he claims that it is a proper exercise of the discretion given him by the statute making his appointment. He also says that there is no duty imposed on him by law to audit and certify these bills. The duties of the auditor of the county of Monmouth are defined in a special statute, applicable to that county alone. Laws 1873, p. 376. He is, among other things, (section 12,) to examine carefully and to audit and adjust all bills, claims, demands, and accounts due to, or which may be presented against, the county of Monmouth, and to certify the amount so adjusted or allowed by him to the county collector for receipt and payment. He is authorized and required to administer an oath or affirmation to the person or persons presenting such accounts or claims, and to any witness or witnesses who may be called or presented, with respect to such...