State v. Kelsey

• Citation: 64 N.J.L. 1,44 A. 884
• Parties: STATE v. KELSEY.
• Decision Date: 13 November 1899
• Court: United States State Supreme Court (New Jersey)

44 A. 884

64 N.J.L. 1

STATE

v. KELSEY.

Supreme Court of New Jersey.

Nov. 13, 1899.

(Syllabus by the Court.)

Action by the state of New Jersey against Henry C. Kelsey. Judgment for plaintiff.

Argued June term, 1899, before MAGIE, C. J., and VAN SYCKEL, GARRISON, and LIPPINCOTT, JJ.

The Attorney General, for the State.

Richard V. Lindabury, for defendant.

MAGIE, C. J. This is an action on contract, involving a sum of such magnitude as makes applicable to it the provisions of section 229 of the practice act (2 Gen. St. p. 2570). It has accordingly been allowed to be tried at the bar of the court. Counsel also agreed to waive a trial by jury, and consented that the issue joined in the action should be tried and determined by the court upon the facts presented in a state of the case, and admitted thereby to be true.

The facts admitted are that the defendant was secretary of state for two terms, of five years each,—the first commencing April 1, 1887, and the second commencing April 1, 1892, —and that, as register of the prerogative court, he received, collected, and retained to his own use between October 1, 1891, and the close of his last official term, for fees for official services as register, various sums of money amounting in the aggregate to $19,748.87. It is contended on behalf of the state that the fees so collected belonged to the state, and should have been paid into its treasury by the defendant, and that, not having so done, he is liable in this action for the amount of such fees, with interest from the various dates when he received them.

By the provisions of an act entitled "An act to ascertain the power and authority of the ordinary and his surrogates, to regulate the jurisdiction of the prerogative court and to establish an orphans' court in the several counties of this state," passed December 16, 1784 (Pat. Laws, p. 59), and an act of similar title passed June 13, 1820 (Rev. Laws, p. 776), and superseding the former act, the secretary of state was made register of the prerogative court, and required, besides the "business heretofore done by him," to attend the sessions of that court, and register the "decrees and proceedings." The constitution of 1844, by paragraph 4 of section 4 of article 6, made the secretary of state the register of the prerogative court, and imposed on him the performance of "the duties required of him by law in that respect." I have not been able to discover any more express description of the duties of the register of the prerogative court, in respect to what he should record in his office, until recent times. It would seem that there was some doubt, or possibly some dispute, as to the extent of his duties in that respect. By the preamble of an act entitled "An act to regulate the secretary's office and the prerogative office of this state, and for the faithful execution of the same," passed November 23, 1795 (Pat. Laws, p. 193), it appears that great numbers of letters of administration, wills, and other papers, remained at that time unrecorded; and by section 4 of the act it was enacted that the register of the prerogative office should be required to record with all convenient speed all papers which should thereafter come to his hands, and "which it may appertain to his office to record"; and he was also required (and that without being entitled to any fees for the service) to record all letters of administration, wills, and other papers which had been deposited in his office since July 2, 1776, and which then remained unrecorded. I think we may find in this legislation a definition of the duty of the register in respect to recording papers in his office, which expressly extended to the registering of decrees and proceedings, the recording of letters of administration and wills, and then of such papers as are comprised within the vague description, "which may appertain to his office to record." By section 4 of the act entitled "An act relative to the office of secretary of state and register of the prerogative court," approved April 17, 1846 (Rev. St. p. 808), the register of the prerogative court is again required to record with all convenient speed all papers which shall come to his hands, and which it may appertain to his office, to record. Comparing that section with section 10 of the same act, and section 17 of the act entitled "An act respecting the orphans' court and the power and authority of surrogates," approved April 16, 1846 (Rev. St. p. 205), it would seem that other papers than letters of administration and wills were in fact recorded by the register of the prerogative court; but whether those enumerated were all that it appertained to his office to record, is not entirely clear. This review of the legislation affecting the duty of the register of the prerogative court respecting the recording of documents and papers in his office has been made because, in my judgment, it has an important bearing upon the construction of the legislative act upon which defendant relies for authority to retain for his own use the fees collected by him, and in question in this case. It remains to be added upon this subject that, before the passage of the act upon which defendant relies, there had been legislation extending the duty of surrogates in respect to the recording of documents and papers in their offices. Examples of such legislation may be found in section 6 of the supplement to the orphans' court act, approved February 1, 1861 (Nixon, Dig. p. 657); in section 34 of the orphans' court act of April 16, 1846 (Rev. St. p. 205); in the supplement to the orphans' court act approved March 1, 1859 (Nixon, Dig. p. 658); and perhaps other legislation.

Passing now to the consideration of the legislation on which defendant relies, it will be useful to first ascertain how the law stood prior to its passage. Here no extended historical review is required. It is conceded that, from the very commencement of the office in question, the official services of its incumbent had been compensated by fees regulated by statute, and collected from the suitors or persons requiring his services in the recording of papers. This system was in existence when the act entitled "An act fixing the compensation of certain public officers of the state," approved March 16, 1876 (Laws 1876, p. 50), was passed. By section 3 of that act it was enacted "that the public officers of this state hereinafter mentioned, shall receive no salaries, but shall be entitled to receive the fees following for services hereinafter specified, and no further or other fees, that is to say. The secretary of state shall be entitled to receive the same fees which he is now entitled by law to receive as secretary of state, clerk of the court of errors and appeals, clerk of the prerogative court and register in the prerogative office, clerk of the court of pardons and commissioner of insurance." By the supplement to the act last cited, approved March 10, 1879 (3 Gen. St. p. 2960) the third section of the original act was thus amended: "That the secretary of state shall receive a salary of six thousand dollars per annum, together with an allowance of four thousand dollars per annum for clerical assistants, to be paid by the treasurer, upon warrant of the comptroller, which said salary shall be in full compensation for all services rendered by the said secretary of state as secretary of state, clerk of the court of errors and appeals, clerk of the prerogative court and register in the prerogative office, clerk of the court of pardons and commissioner of Insurance, or in any other official capacity whatever, and for all clerk hire, save and except that the assistant secretary of state shall continue to receive a salary now provided by law for his services; and all fees now payable by law to him as secretary of state, clerk of the court of...