
    PHILIP HANDSCHUCH, RELATOR, v. WILLIAM B. MARTIN, CLERK OF THE COUNTY OF UNION, AND THEODORE W. BROKAW, CLERK OF THE CITY OF ELIZABETH, RESPONDENTS.
    Argued September 19, 1929
    Decided October 1, 1929.
    
      Before Justices Tbbnciiaed, Lloyd and Case.
    Eor the relator, Sidney 17. Eldridge.
    
    Eor the respondent, Theodore 17. Broleaw and Edward A. McGrath.
    
    Eor the respondent, William B. Marlin and Francis J. Blalz.
    
   Pee Curiam.

The following matters of fact appear: At the general election for the jrear 1926, William J. Mottley Avas elected a member of the board of assessment and revision of taxes (commonly knoAvn as assessor) in the city of Elizabeth, for the eighth ward thereof, for a term beginning July 1st, 1927, and ending June 30th, 1929. He took office. He Avas again elected at the general election of 1928 for a term from July 1st, 1929, ending June 30th, 1931. He took the oath of office on November 22d, 1928. He died November 2oth, 1928.

On December 5th, 1928, by resolution of city council, Margaret Mottley Avas elected “for the unexpired term of William J. Mottley, deceased, to June 30th, 1929, and for a period from July 1st, 1929, until a successor has been duly electedand she took the oath of office.

On July 5th, 1929, Margaret Mottley resigned and her resignation Avas accepted, and on July 8th, 1929, Sarah Mottley Avas elected by city council “for a period from July 5th, 1929, until a successor has been duly elected.”

The question seems to be should a successor be elected at the next general election.

We think the term vacated was the unexpired term of William J. Mottley, described as “from July 1st, 1929, until a successor has been duly elected,” following practically the language of the act of 1901. Pamph. L. 1901, p. 42, § 5, provides that: “All vacancies in offices in anjr city in this state arising from or created by any other cause than expiration of term of office, shall be filled for the unexpired term only; vacancies in elective offices shall hereafter be filled at the next general or state election, and not otherwise ”

Section 7 provides that “every officer now or hereafter holding any office covered by the provisions of this act, except justices of the peace, shall continue to hold such office, and to continue to exercise the duties thereof * * * until his successor has been chosen and qualified

Section 8 repeals all inconsistent acts, special or general.

We believe that this act is still in effect, and that seems to be conceded. That being so, we think it was the duty of the city clerk to certify to the county clerk the vacancy to be filled at the next general election. That, it appears, he did not do, although requested, and refused so to do as late as August 29th, 1929.

We therefore think and order that a peremptory writ issue commanding and enjoining Theodore W. Brokaw, clerk of the city of Elizabeth, to make and certify under his hand and seal of office and forward to the clerk of the county of Union a statement designating the public office of member of the board of assessment and revision of taxes in the city of Elizabeth, for the eighth ward thereof, for the unexpired term of William J. Mottley, deceased, to be filled at the general election in the year 1929.

We do not think that we should require anything of the county clerk by way of mandamus as matters now stand. He has never been asked to do anything in this connection which legally he was compelled to do, and so, of course, lias not declined to do anything which legally he was compelled to do. His duty begins only upon the vacancy being certified to him, and that has not been done as yet.

We assume that, in respect to such duties as the law casts upon him after receiving the certificate, he will perform such duties.

The peremptory writ of mandamus will issue accordingly.  