The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1899-06-07
kELSEVS CASE
State Sues Him For $4,000
Fees Which It Claims
He Withheld
Illegally.
ARGUMENT IN SUPREME COURT
R. v. Lindabury Contends
That Secretary of State
Was Entitled to
the Fees.
ARGUMENT IN SUPREME COURT
lsnenIal 10 ..rbe Iersev civ Newg.o1

Especial to 1.-THE Jersey City News."1
TRENTON, Tune Z, 1s99.-The suit
brought by the State against former Sec
rotary of State Henry C. Kelsey to recov-
er about s2o,0 600 for fees retained by him
as Register of the Prerogative Court was
argued before the Supreme Court yester-
for the State, while Mr.. Kelsey was rep
resented by R. v. Lindabury, Judge Roo
ert s. Woodruff, ex-Judge William NJ.
Lanning and G.. D. w. Vroom.
The whole case hinges upon the con-
struction of the several acts relative to
the compensation of the Secretary of
State, which office was made a salaried
one instead of the incumbent being paid
on the fee system. A decision in the pres
ent case will not only affect Mr.. Kelsey,
but the present Secretary of State George
Wurts, who has retained the fees received
by him as Register of the P~rerogative
Court pending the Courts decision. These
fees Mr.. Wurts has not appropriated 20
his own use, but is holding them in trust
ready to turn them into the State Treas
ury. if it shall be determined that he is
not entitled to them.
"The Secretary of State" said Mr.. Grey
in his argument, received no salary until
the act of March 10, 1879, which was a sup
plement to an act approved March 1s.
1876. BY the act of 1879 it was provided
that the Secretary of State shall receive
a salary of $1,000 per annum, together with
an allowance of $4,000 per annum for cler!
cal assistance, which salary shall be a full
compensation for all services rendered by
the said Secretary of State. Clerk of the
Court of Errors and Appeals. Clerk of the
P~rerogative 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, safe and except
tiFat the Assistant Secretary of State
shall continue to receive the salary now
provided by law"
The next act supplementary to that of
1876 was passed in 1881, in which it is de-
clared that the Secretary of State shall
not be entitled to take, receive or retain.
except for the use of the State, any COM
p%ensation, fee or emolument whatsoever,
other than the annual salary of $1,000, for
any act or service performed or thing
done or furnished by him in any official
capacity or under any law of this State
The fees in question were retained by
MI. AGlSey ulltlEI di act VI 1901, WHICH
prescribes his duties as Register of the
Prerogativel Court. This act increased
the duties of the Secretary of State, but
Mr.. Grey said he failed to see that it
made any provision for increasing his
remuneration. To place such a con-
struction on the act, he said, would be
to make a radical departure from the
system which the. State had more than
ten years ago adopted of making the
office a. salaried one exclusively.
According to Mr.. Grey, the Secretary
of State under his act is instructed 10
collect the same fees as the ~Surrogates
and turn them over to the State.
Mr.. Grey was followed by R. v. Linda
bury, representing Mr.. Kelsey. Mr.. Lin
dabury, after stating the facts of the
case, read the act of 1891.
The first point made by Mr.. Linda
bury was that the act in question pro-
vides that the Register shall be en-
titled to charge and receive the fees in
| question:"
The second point of Mr.. Lindabury was
that the act in question declares that
the fees which it creates shall be re-
| ceived by the Register for his services
as SUCH.
1t is no answer, continued Mr.. Linda
bury, to these arguments to say that the
| Legislature established the salary system
by the acts of 1879 and 1881, and cannot
therefore be supposed to have intended
to return to the fee system In
whole or part by the act of 1891. He
said the Legislature of 1891 was as free
to adopt a new system, or modify the
old one, as was the Legislature Oh 1871.
| Unquestionably. he commended, the Legis-
| lature did return to the fee system in
part b yallowing the Secretary of State
part by allowing the Secretary of State
ever he expended for clerk hire under the
act.
Nor. we submit" said Mr.. Linda
bury in conclusion. f'can it be success
fully claimed that the fees received by
the Secretary between October l, 1891.
and the expiration of his then term OF
office, were improperly retained on ac-
count of the constitutional provision pro-
| hibiting any increase in the compensa-
ton of a public officer during his term of
office.
ssThe increase prohibited by the Con-
| stitution is for doing the same duty tffat
is imposed when the Office is accepted
at a stated salary or compensation, and
does not restrain the Legislature from
duties imposed.
I'VE respectively submit that judy
ment should be rendered for the defend
ant.
In accordance with the usual practice
a decision will not be rendered until the
opening of the next~term of court.