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Kelley v. Board of Chosen Freeholders of County of Passaic

Decided: July 23, 1937.


On mandamus.

For the relator, Isadore Rabinowitz.

For the defendants, Harry L. Schoen.

Before Brogan, Chief Justice, and Justices Trenchard and Parker.


BROGAN, CHIEF JUSTICE. This matter comes before us on rule to show cause why a peremptory or alternative writ of mandamus should not be awarded to the relator, commanding the governing body of Passaic county and John F. Streckfuss, its treasurer, to pay relator the sum of $4,083.31 with interest.

The pertinent, undisputed facts are that George P. Kelley, the relator, was appointed as stenographic reporter in 1932, in and for the Ninth Judicial District of this state (Pamph. L. 1900, ch. 149, p. 349), comprising Passaic and Sussex counties; that his compensation was fixed in accordance with the provisions of the statute (Pamph. L. 1901, ch. 81, p. 182) by the Supreme Court justice presiding in the district, at the sum of $14,500 per year, $14,000 of which was apportioned to be paid by Passaic county, the balance by Sussex

county; that under the statute (Pamph. L. 1901) supra, one-third of the salary paid to Mr. Kelley by Passaic county was refunded to it by the State of New Jersey. By virtue of chapter 17, Pamph. L. 1933, p. 32, entitled, "An act respecting the salaries or compensation of officers and employes of and persons holding positions under the government of this state, whose salaries or compensation are paid by counties or municipalities," which act permits such governing bodies, by resolution, to reduce the salary paid by such governing body to any officer or employe holding a position under the government of this state, Mr. Kelley's compensation was reduced by twenty-five per cent. for the years 1933, 1934 and 1935, and by twelve and one-half per cent. for the year 1936, i. e., there was deducted for the years 1933 to 1936, inclusive, the several percentages mentioned, on the entire salary fixed in the certificate of appointment, although the State of New Jersey, during these years, refunded to the said county of Passaic one-third of the total amount as originally fixed and not as reduced under the statute of 1933.

The relator, on October 31st, 1933, called to the attention of the finance committee of the board of freeholders of Passaic county what he contended was an error in the method of computing the salary of his office. In a word, he requested that the one-third of his salary as originally fixed, and which was paid by the state to the county, be paid to him in full. At no time did he question the validity of the statute under which his salary was reduced. Again, on January 14th, 1936, the relator, by counsel, protested against the reduction of twenty-five per cent. "from the whole salary."

In support of the rule and urging that a peremptory mandamus be awarded him, the relator argues that the deductions authorized by the 1933 statute (whose life was continued up to 1937) should have been made only from that portion of the relator's salary paid by the county and that mandamus is the proper remedy in the situation. Against the rule, the defendants urge that the writ should not be allowed because of laches and that mandamus is not the proper remedy. We do not believe that laches can be raised as a bar against the relator's

right since, under the statute (limitation of actions, 3 Comp. Stat., p. 3162), he would have six years within which to present his claim in a suit at law. Mandamus, none the less, is an extraordinary remedy to be invoked in extraordinary cases and, as a rule, should not be allowed where there are other customary and adequate modes open to the complaining party whereby he might have redress. In the main, the writ is awarded to compel the performance of a ministerial duty where the right to have the duty performed is clear and free from doubt. If, therefore, the relator has a clear, legal right and there is no other specific, adequate legal remedy, the writ should issue; otherwise not.

It is argued that the relator, being the stenographic reporter for the district, is an officer of the court and the appointment fixing his salary, per se, has the force of a judgment, relying on the cases of Lindabury v. Board of Chosen Freeholders of the County of Ocean, 47 N.J.L. 417; Knight v. Freeholders of Ocean County, 48 Id. 70, and Irving v. Applegate, ...

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