State ex rel. Martin v. Ivins

The opinion of the court was delivered by Gummere, J. The relator was elected a member of the board of chosen freeholders of Camden county, in April, 1895, under and by virtue of the provisions of an act of the legisla [365] ture passed May 9th, 1894, and entitled “An act to organize the board of chosen freeholders in each of the counties of this state having within its territorial limits a population of not less than seventy-five thousand inhabitants or more than two hundred thousand inhabitants.” Gen. Stat, p. 427, § 108 et seq. He was elected for a term of two years, commencing on the 8th day of May, 1895. By the third section of the act of 1894, each member of every board of freeholders, elected under and by virtue of the provisions of the act, was entitled to an annual salary of $150, payable out of the county treasury by the county collector, in equal quarterly installments. On March 25th, 1895, a supplement to the act of 1894 was passed, amending its third section so as to entitle members of boards of freeholders, elected under and by virtue of the provisions of the act, to an annual salary of $300, payable quarterly, with a proviso, however, that the supplement should not apply to the board of chosen freeholders of any county having a population of less than one hundred thousand inhabitants. Gen. Stat, p. 428, § 115. It is not disputed that when the relator entered upon the duties of his office, on May 8th, 1895, he was entitled only to an annual salary of $150, Camden county at that time having less than one hundred thousand inhabitants ■ but it is claimed, on his behalf, that, by virtue of the provisions of the supplement of 1895, he became entitled on August 8th, 1895, and on each quarter-day thereafter, to be paid an increased salary at the rate of $300 per annum, and he seeks, by this proceeding, to compel the county collector to pay to him the installments of his salary which accrued and fell due on the 8th days of August and November, 1895, and of February and May, 1896, at the increased rate, the county collector having refused to pay such installments except at the annual rate of $150. The ground upon which the relator bases his claim to be paid his saláry at the increased rate is that, by the state census taken in the year 1895, the population of Camden [366] county was ascertained to be one hundred thousand one hundred and four, and that by the filing of such ascertainment in the office of the secretary of state on July 1st, 1895, the population became fixed, for the purposes of classification, at the number of inhabitants so ascertained. It is true that when population is made the basis of classification for the purpose of regulating the affairs of counties, the last official census is accepted as determining the amount of the population of the county to which the regulation is sought to be applied; but such census takes effect not from the date of its filing in the office of the secretary of state, but from the time of its promulgation by that officer (In re Sewer Assessment for Passaic, 25 Vroom 156), which, in this case, was the 15th day of January, 1896, that being the day fixed for the purpose by statute. Gen. Stat, p. 366, § 10. It is evident, therefore, that the relator had no valid claim to be paid the installments of his salary which fell due on the 8th days of August and November, 1895, at the rate of $300 per annum, for until January 15th, 1896, the population of Camden county, so far as those payments were concerned, was fixed by the official census which preceded that taken in 1895, and by that prior census it was less than one hundred thousand. The question remains whether he is entitled to be paid at the higher rate those installments which fell due on the 8th of February and the 8th of May, 1896, they having become payable subsequent to the official promulgation of the census of 1895. It seems to me not, and for this reason: The salary provided by the statute is an annual one. Freeholders in counties having one hundred thousand inhabitants or more are entitled to an annual salary of $300; those in counties having less than that number of inhabitants are to receive an annual salary pf $150. That such salary is payable in installments instead of in one payment does not alter the fact that it is an annual one, and that it must be either $150 or $300. But if the relator is to be paid at the lower rate for the first two quarters of the year and at the higher rate for [367] the last two, his annual salary is neither $150 nor $300, but $225. That he is not entitled to receive this latter amount is •clear. He must be paid for the first year of his service, extending from May 8th,T895, to May 8th, 1896, one of the two sums named in the statute. That he has no claim to be paid the larger amount does not seem to admit of doubt, for when the first installment of his salary became payable he was only entitled to receive the one-quarter of $150, for the reason already stated, and this was also the case when the second installment fell due. The subsequent increase in population could not operate to make those payments invalid and to give the relator the right to have an additional amount paid to him on account thereof. It consequently follows that the salary of the relator for the year ending May 8th, 1896, was $150, and that his right to be paid the larger amount fixed by the act of March 25th, 1895, did not accrue until the second year of his term. This being so, the action of the county collector in refusing to pay him the amounts demanded was entirely proper, and the application for a mandamus should be refused.