New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1882-02-24
SECRETARY KELSEY'S CASE.
DECISION BY THE SUPREME COURT.


scudder sat 10 the case and the opinions
were by them, the remainder of the Court having
no part in the ChiefJustice Beas'ey ana Iungo
decided that Mr. Kelsey entitledto $52ooo
fees retained for soung copies of the laws TO the news
papers but that he has Illegally retained S6n3 fees
received for fling vital statistics. Judge Magle us
sented from the frat proposition and read an opinion
upon the subject.
In the year 1881 Senator Yonngbood introduced ana
the Ie ture passed resolu directing the Attorney
General 10 begin these suits IL was alleged tnat M
Kelsey from 1876 to 1881 had received $32,3Oo d
for sending printed slips Of the laws to the
newspapers authorized to print them. ard the law OF
1876 which provided for The publication of the law ana
which limited the 10 be rcceyed under II at $1,000
pcr annun, was quoted evidence OF the Secretary
illegal action Later the Attorney General was authorized
10 bring suit to recover $6,715 illegally collected
for filing the vital statistics received during the
| same period. The matter was argued at length
| Attorney General stockton filing extensive and
| complete brief. in which the facts wer'
set forth with great effect and the arguments OF when
were regarded of great force. Barker Gulnncre ap
peared for Mr. Kelsey, and the branch Court" JUS
tees Beasley scudder and Magic, heard the arguments
The this morning was filed with interested
spectators who waited wearicdly while the opinions on
| cases of small importance were read CmefJus'l'e
Beasey adjusted his eyeglasses and read the opinion
in the case OF State against kelsey"
The Chief Justice said the took the form OF as
moneys alleged due the state from Henry e kel-
sew secretary of state The question are adj
mitted to have been received and the only question Is
whether Secretary had the right TO charge ana re-
cevc cents per folio sending copies of the laws To
the newspapers and II cents per folio for filing copies
of the statistics Of Births marriages and deaths III his
Office The Court il relieved by agreement from the
| consi dcraion OF the question whether the
Secretary had the right TO deain the moneys
he claimed he due him from funds received for those
purposes II appears that April g. 1876, the secre-
tary was duly appointed TO Office for second term of
five years and of such appointment there was
no law providing for publication OF the laws in the
newspapers Fifteen days after namely. on April q,
law went into effect providing for the publication II
contained proviso that the Secretary for furnishing the
copies tn the pa should receive the fees now pro
yilcd by that In should the amount thus
receivcd exceed 81 900 in any year" In spite of
| this the Secretary charged cents per foto. 1t If
| admitted that he furnished only one manuscript copy,
and that the other copies were Of printed slips HIS
claim obviously that he hadthe right {" execute the
law vet rcpudatc the provsI limiting his compensation.
ON the ground that when he appointed he WA en-
titled TO certain rates conpensat and the Consu
lion forbade the decrease of officials compensation
during his term.
The first question is whether any law authorized the
Secretary TO charge cents per folio for sending out
! documents from bis Office The Chef-Jusce reviewed
his question al length He said the Court could not
treat the fee law II II was recent enactment Tor II
for eighty and this custom formed practice which
the Court could not override as lightly az were law
now first coming UP for construction BY the action or
! The Governors. Trcasur and Controllers II has
| been made the custom 10 allow the secrcia
e- Of atc me con yer folio for all services OF the
kind The ion Of the Attorncy-Gcnera mat ne
was not entitled TO receive the sums from the state
that he was to get private individuals is not good
TIE aim that the amounts paid by the Treasurer to
former secretaries paid as ma ter OF JUS Ice ana
Of right that the Court must long hesitate to
the payments originated IN error the error has now Dc
'Vi' C,ioe T,etico tto +ovt If tIo raso-
linton authorizing the beginning Of this SUIT "a well az
the " The law Of 1876 pointed directly to the sup
had previously cocc ed and that the obeco the law OF
1876 plainly to abolish an ola hodof payment ana
worth the fees authorized did not enter mo me consider
alton The matter II seemed plain TO the Court that
the law gave the right 10 charge the
lie claimed The question then settled upon the
rig If the Legislature by It's ac OF 30 to change me
compensation. The wise Constitutional provision
AGAINST increasing decreasing an officials conPenSa-
ton during his term OF oucc applied 10 iS act me
limiting the compensation to ?looo dld decrease
the Secrctayys emoumcnts, and, therefore, was I'M
constitutional and void The Auorney,'eheraI ma con
tended that if his clause was ubconstltutiona MAJ
The whole act void, bur the Court cond not take this
yew and the decisions had been all peainSt such con-
strucon The AIRY bound to obey :" nuch "f
newspapers the clause limiting MS compensation was
NJ constitutional aud he. therefore, had right to The
old rate pays cents folio for each copy furnished
whether printed written. The state Is not entitled To
recover the S323 "a claimed ,....,
The ChefJps then took up rhe other hranch o me
case against Mr. Kelsey concerning ne hns OI wal sti-
tistics TIE fee bill gives tie secretary no ah3hliy TO
rean of statistics Ills duty le each package, and
there no more apparent reason for etH Ing Tor
each ballot if the baothoxes If ne Stnte were sent TO
nm for safe kccuing. The fees taken from ms source
taken i gaiy and the state Is entitled TO recover
nd5r Maize then read an opinion diss anting from
much of the ChcfJ Justices opinion as related to GhaTg
ing cent, per folio for sending ont the laws ne ne
voted his attention tntr'ly To Inc question: WIG h,r
the Secretary his predecessors iad any ngh al al'
u aTe 10 and G w Tor dcrird that no sci right ex
listed He had 1t was ci timei, no nehJ 10 chaISe
70 the newspapers or 10 prHae mdNduails me
fee hill of 1899 gave him certain iceS for certain duties.
not iHcludn. the furnishing Of the Jaws. In l5US spc
cDrtain SAFE oiicias With copies and in 1917 further
enacincnts gave him oher pry c-es. but not the one
in 0vcrsy In 1919 tn" hrt liw provding for the
publication of passed, aud the records show
HAT he secretary If state then received payment for
one manuscript copy only There * only one record ui-
I'll 1866 Of claim made lor payment at re rae Of
were published in each count wire secret ry charged and
1855 the secretary furn 600 folio, Of tho laws
the newspapers and received cents folio, or Sl2S.
This form ne single e1cep ion In 1910 me secretary
The succeeding years until 1866 Is lnGetnitc
In no is The claim for payment based distinctly on
male upon it, The record, therefore, shows that the
payment # cents folio has not been consecutive or
lucknow lodged and is sufficient 10 form custom or
practice strong enough TO suide Inns 1ouIl;;
the fees, and tLcy should not be permit d OF EN-
Jnd, Maize said this view rendered Il unnecessary to
TO 20 into constitutional questions involved m the
other branches the subject he concurred In the
q the chciJusticc the matter OF the fees for
| vital statistics.
Judg scGdcr said hc cOncurred III the opinion OF the
| CHEZ Justice throughout.
The nomination OF secretary Kelsey is pending in the
Senate. Ia view Of tine dNsi o. the Supreme Court
an appeal the Court of Errors is probable. in which
ease il likely that TIE nomination wOull be
NIT ~ for her year Toe feeling
ing he Secretary right 10 the fees has no. been modified
by opinions read ana the facts that only three judges
sa ne tasc tina If them I'll ,putcd, and thai there
is prc knO6ledg OF a cae whore Judge Scudder
has u!er,d with thc ChicfJu,tce under any cream
| stances, stIeug hcn the sentiment
| THE NEU-JERSEY LEGISLATURE