
    THE STATE, EX REL. LOUIS H. MILLER, v. THE BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF CUMBERLAND.
    Under the supplement of March 7th, 1895, to the Borough act of April 5th, 1878, the borough of Vineland is entitled to one member of the board of chosen freeholders, but he cannot be elected until the election to be held in the spring of 1896.
    On application for mandamus.
    
    Argued at November Term, 1895, before Justices Depue, Van Syckel and Gummeke.
    For the relator, Louis H. Miller and Leverett Newcomb.
    
    For the defendants, Royal P. Puller.
    
   The opinion of the court was delivered by

Van Syckel, J.

The relator applies for a mandamus directed to the defendants, commanding them to admit him as a member of the board from the borough of Vineland.

It is alleged that he was duly elected at an election held in the borough on the 12th of March, 1895.

The borough of Vineland was incorporated under the act of April 5th, 1878.

A supplement to that act was passed April 25th, 1894, as follows (Gen. Stat.,p. 211):

1. That all boroughs of the first class existing within the limits of any of the townships of this state incorporated under the act to which this is a supplement, shall hereafter be entirely separated and independent in all matters of local government from the townships out of which said boroughs have been created, but nothing in this act shall deprive the inhabitants of any of said boroughs of any local option rights which they may now possess by virtue of their township charter.

“2. That the legal voters within the said boroughs shall have no right to vote for any officer of the townships out of which said boroughs have been created, nor to vote for any appropriation for any purpose concerning the townships out of which said boroughs have been created.

“3. That in all boroughs of the first class incorporated under the act to which this is a supplement, the legal voters of said boroughs shall, at each annual election, for borough officers, elect justices of the peace, constables, surveyors of the highways, poundkeepers and overseers of the poor for such boroughs, in accordance with the existing statutes regulating the election and term of office of such officers in townships.

“4. That the mayor of each and every borough of the first class incorporated under the act to which this is a supplement shall hereafter be elected to serve for the term of three years.

5. That the legal voters of all boroughs of the first class incorporated under the act to which this is a supplement shall have the right, by vote, to designate annually, upon the ballots used in voting for borough officers, such amounts as may be deemed advisable for any and all legal purposes of a local nature in any way connected with said boroughs.

6. That hereafter all boroughs of the first class incorporated under the act to which this is a supplement shall be entitled to one member of the board of chosen freeholders, to be elected in accordance with the existing statutes now regulating the election and length of terms of members of said board of chosen freeholders.

7. That all township officers elected prior to the passage of this act residing within said boroughs shall hold their offices until the expiration of the terms to which they were elected.

8. That all acts and parts of acts inconsistent herewith be and they are hereby repealed.”

A further supplement was passed March 7th, 1895, as follows (Gen. Stat, p. 215):

“1. That all boroughs existing within the limits of any of the townships of this state incorporated under the act to which this is a supplement, shall hereafter be entirely separate and independent in all matters of. local government from the townships out of which said boroughs have been created.

“ 2. That in all boroughs incorporated under the act to which this is a supplement the legal voters of said boroughs shall, at each annual election for borough officers, elect justices of the peace, constables, surveyors of the highways, poundkeepers and overseers of the poor for such boroughs, in accordance with existing statutes regulating the election and term of office of such officers in townships.

“ 3. That the mayor of each and every borough' incorporated under the act to which this is a supplement shall hereafter be elected to serve for the term of two years. :

“4. That the legal voters of all boroughs incorporated under the act to which this is a supplement shall have the right, by vote, to designate annually, upon the ballots used in voting for borough officers, such amounts as may be deemed advisable for any and all legal purposes of a local nature in any way connected with said boroughs.

5. That hereafter all boroughs incorporated under the act to which this is a supplement shall be entitled to one member of the board of chosen freeholders, provided the population exceeds twenty-five hundred, to be elected in accordance with the existing statutes now regulating the election and length of terms of members of said boards of chosen freeholders.

“ 6. That in case of the formation of any borough out of the part of any township in this state by virtue of the above act, any member of the township committee, overseer of the roads or township officer, residing within the limits of the borough, shall hold his said office and perform the duties thereof until the next general election is held for the election of township officers, at which time some other person or persons residing in the remaining part of said township shall be elected in his place and stead, whether the term of his said office for which he was originally elected has expired or not.

“7. .That all acts and parts of acts inconsistent herewith be and they are hereby repealed, and that this act shall take effect immediately.”

This supplement of 1895 was manifestly intended to be a substitute for the supplement of 1894.

When the act of March 7th, 1895, took effect the act of 1894 ceased to be of any force or effect, and no action could be taken in virtue of it.

There can be no question that under the fifth section of the act of 1895 the borough of Vineland is entitled to a chosen freeholder; the point to be determined is when the right to elect may be exercised.

Under the seventh section of the act of 1894 all township officers elected prior to the passage of that act, residing within boroughs, were to hold their offices, until the expiration of the terms for which they were elected.

Under the supplement of 1895 they are to hold office only until the next general election is held for the election of township officers.

Under the supplement of 1894 the officers who had been elected by the township before the formation of the borough, whether they resided in the territory of the borough or in that remaining to the township, were to continue in office as officers not of the borough, but of the township, for the full term for which they had been elected.

Under the supplement of 1895 these officers, so far. as they resided in the territory of the borough, were to hold their offices only until the next general election of township officers.

The object of this legislation was to give the township the right to have a full set of officers residing within its boundaries. The borough was given a like power, and to effectuate the apparent object of this legislation the term township officers ” must be held to embrace all officers elected or to be elected by the voters oí a township, of which a chosen freeholder is one.

The township of Vineland was empowered expressly to elect a freeholder in accordance with the existing statutes regulating the election and length of terms of members of said boards of freeholders. By a supplement, passed March 7th, 1893, to the Borough act of 1878 (Gen. Stat., p. 202), all elections held in the borough are to be conducted under the provisions of the Election law approved April 18th, 1876. Gen. Stat., p. 1295.

The law regulating the election is the ninth section of the General Election law of 1876. Gen. Stat., p. 1297.

By that section, eight days’ notice must be given of such election.

When the act of 1895 was passed, only five days intervened before an election was to be held, and there was, therefore, no opportunity to elect a chosen freeholder for the borough in the year 1895. The election was held March 12th, 1895.

The language until the next general election is held for the election of township officers,” in the sixth section of the act of 1895, means the next general election at which township officers could be elected, which was not until the spring of 1896.

The right of the borough, under the fifth section,' to elect a chosen freeholder does not accrue until the spring of 1896, because until then a chosen freeholder cannot be chosen in accordance with the provisions of the ninth section of the General Election law.

The election of the relator, therefore, was premature, and he is without title to the office.

The mandamus is denied, with costs.  