On appeal from judgment of the Supreme Court, entered on an order of a Circuit Court Judge, sitting as a commissioner, whose opinion is reported in 17 N.J. Mis. R. 133. See, also, Lally v. Allgair, 122 N.J.L. 499.
For the appellant, Lum, Tamblyn & Fairlie and Grover F. Kipsey (Ralph E. Lum, of counsel).
For the respondent, T. Girard Wharton.
The opinion of the court was delivered by
HEHER, J. We entertain the view that the respondent, Crater, as the duly elected clerk of the County of Somerset, is an "officer" of the county within the intendment of section 40:11-17 of the Revised Statutes of 1937, derived from chapter 271 of the laws of 1931. Pamph, L., p. 681.
True, respondent is the holder of an office established by the State Constitution. Article VII, section II, placitum 6. Yet, the jurisdiction is essentially local in character, albeit the incumbent may on occasions exercise delegated sovereign power. Territorially, his jurisdiction is limited to the county -- as a common law political subdivision -- whose electors have chosen him to serve in that capacity. The Constitution classifies the incumbents as "clerks * * * of counties," and
provides for their election "by the people of their respective counties * * *." It is of no moment that, as maintained by respondent, "the duties of the county clerk * * * affect the welfare of the state and its people as a whole." Nor is it conclusive of this inquiry that the Constitution provides that "all civil officers elected or appointed by the Governor," thereof "shall be commissioned by the Governor," or that the Governor is empowered to fill pro tempore a vacancy in such office. Article VII, section II, placitum 10; article V, placitum 12. The prescribed service is rendered to the county as a political subdivision of the state. While fixed by the legislature, the salary is paid by the county.
But, apart from the foregoing, the question is, after all, one of legislative intent. While a public officer may function in a dual capacity, i.e., in the exercise of state governmental functions and those strictly municipal (vide Rodgers v. Taggart, 120 N.J.L. 243; affirming 118 Id. 542), the determinative inquiry here is whether the legislature, by the designation "officer * * * of any county," embodied in R.S. 1937, 40:11-17, designed to include the clerk of such civil division. We find unmistakable tokens of that purpose. Under title 40, "Municipalities and Counties," subtitle 1, chapter 11, "Officers and Employes," it is ordained that, except as otherwise provided by law, residence in the county is an indispensable qualification for the holder of "an office, the authority and duties of which relate to a county only * * *." R.S. 1937, 40:11-1. The statutory provision under review has likewise been incorporated in title 40, subtitle 1, chapter 11, supra; and it is also significant of this legislative view that, in the provision fixing salaries, such officers are designated as "county clerks." Sheriffs are in like manner classified. R.S. 1937, 40:41-1. So, too, the surrogates, although under a different title. R.S. 1937, 2:7-1, et seq.; 2:31-4, et seq.
There is no occasion to consider whether section 40:11-17, supra, contravenes article IV, section VII, placitum 11, of the State Constitution, prohibiting the passage by the legislature of "private, local or special laws * * * regulating the internal affairs of towns and counties," for, on the assumption
of such constitutional invalidity, there is no statutory authority for the payment of the compensation sought to be recovered here.
Section 40:38-5 of the Revision regulates the salaries of the clerks of the several counties of the state, and for that purpose classifies them according to population. Section 40:38-6 provides that, "Except as otherwise provided by section 40:11-17 of this title the salaries provided for by section 40:38-5 * * * shall be determined and paid upon a basis of population shown by the latest census, without regard to the date of election or appointment of the county clerk," with a saving clause against diminution of the salary of such officer "during the term of office to which he has been or may be elected or appointed immediately preceding the promulgation of a national census." Section 40:11-17 directs that "The promulgation or taking effect of the federal census for the year one thousand nine hundred and thirty, or the passage of an act for the reclassification of counties of this state, shall not operate to increase or decrease the salary or compensation ...