Vanderveer v. Herbert , 47 Vroom 173 ( 1908 )

The opinion of the court was delivered by

Parker, J.

The relators comprise the board of registry and elections of the third election district of the township of Freehold, in the county of Monmouth, in conducting the primary elections held in said district for the years 1903, 1904 and 1905. They also attended at other times and places required by the Election law during said years, and received the sum of $25 each per year, as provided by section 178 of the Elections act of 1898, as amended by Pamph. L. 1903, p. 711, which provides that for all services performed by each member of said boards, under the provisions of the act, in connection with the general election or any special election held in and for the whole county, compensation shall be, in districts where the number of registered voters is more than three hundred, $25.

Tlie claim of tlie relators is that, in addition to the above amounts, which were paid them, they are entitled to the further sum of $5 each for the primary elections held in said years, and which seems to be provided as an extra fee, under a different amendment of the same section, which will be found in Pamph. L. 1903, p. 628. The theory on which this claim is made is that the amendment on page 628, approved April 14th, 1903, is not inconsistent with the further amendment of the same section, found on page 711, approved the next day, April 15th, 1903, although the latter amendment contains a complete substitute section and provides, in section 2, that all acts and parts of acts inconsistent therewith are repealed.

We are unable to see how two amendments of the same section, each of which purports to give the entire section as amended, as in this case, can be in force at the same time. When the amendment on page 628, being part of what is ordinarily known as the Primary Elections act of 1903 (Pamph. L., p. 603), took effect, it necessarily wiped out the whole of section 178, as found in the Elections act of 1898, and substituted for it the amended section, as found on page 628 of the laws of 1903. So, in like manner, upon the passage and approval, the next day, of the further amendatory act, on page 711 (Pamph. L. 1903), amending section 178 of the Elections act, “so that the same should read as” provided in said last amendment, the result was to repeal entire the first amendment and substitute for it the further amendment thereby enacted. As the second amendment contained no provision for the extra payment of election officers at primaries, any such payment after its passage and approval was unauthorized.

If there were any doubt about the correctness of the conclusion we have reached, and we think there is none, the second section of the latest amending act, above cited, providing' that all acts and parts of acts inconsistent with it are repealed, would seem to remove such doubt.

The rule to show cause for a mandamus will be discharged.