attendance of a sufficient number of favorable voters to equal thirty per cent. of those cast at the next prior election for members of the general assembly. All that the statute provides is that if a majority of the votes cast are not favorable to the adoption of the act, then no further proceedings shall be taken until the expiration of the time fixed. The limitation applies when the votes cast in favor of the adoption are not a majority of all those voting, and not where the act remains inoperative because the votes cast in its favor do not equal the required thirty per centum.

The demurrer should be overruled and the relator awarded a peremptory writ of mandamus. As the respondent is a city officer, and the question whether the municipality he represented should be put to the expense of another election, raised a fair ground of controversy, we think that no costs should be allowed to the relator.

DANIEL H. V. BELL, PROSECUTOR, v. CITY OF ATLANTIC CITY ET AL., DEFENDANTS.

Submitted July 6, 1916-Decided November 10, 1916.

The prosecutor was appointed to the office of city clerk of Atlantic City, for one year at a stated salary, and held the office without reappointment for three years, when he was superseded by another. He contests the legality of the appointment of his successor upon the ground that, being a veteran of the SpanishAmerican war, he cannot be removed under the provisions of the act of 1907, chapter 14, without good cause, and after a fair and impartial hearing. Held, that the act of 1907 applies only to officials holding an office, whose term was not fixed by law at the time of the passage and approval of the act.

On certiorari removing resolution of commissioners.

Before Justices SWAYZE, MINTURN and KALISCH.

Bell v. Atlantic City.

89 N. J. L.

For the prosecutor, Theodore W. Schimpf.

For the defendants, Harry Wootton.

The opinion of the court was delivered by

MINTURN, J. The writ of certiorari in this case brings up for review a resolution passed by the commissioners of Atlantic City removing the prosecutor from the office of city clerk and appointing another in his place. The contention of the prosecutor against the validity of this action is based upon the fact that he is an honorably-discharged veteran of the Spanish-American war, and as such is entitled under the Veteran act (Pamph. L. 1907, p. 37) to serve in the position from which he was removed until, in the language of the act, he shall be removed "for good cause shown after a fair and impartial hearing." That act, however, contains a qualifying feature which presents the real inquiry upon this writ, i. e., the veteran who may claim the benefit of its provisions must be the occupant of an office or position "whose term of office is not now fixed by law."

It is important to inquire, therefore, whether at the time of the enactment of the legislation invoked the term of office of the city clerk was fixed by law, for obviously if it was, the prosecutor does not bring himself within the terms of the act. The city is governed by the provisions of "An act relating to, regulating and providing for the government of cities," approved April 3d, 1902. Pamph. L., p. 284. The second section of the act provides for the appointment of a city clerk and fixes his term of office at three years.

Subsequent legislation applicable to the city enabled the commissioners to appoint a city clerk "for such term as they may fix." Pamph. L. 1911, p. 462; Pamph. L. 1912, p. 643. The commissioners, on July 16th, 1912, adopted a resolution providing for the appointment of a city clerk for the term of one year, and fixing his salary. At a meeting, held on July 30th, 1912, the prosecutor was appointed to the office and the salary by another resolution was increased. Νο change was made in the office until May 16th, 1916, when

another resolution was passed providing for the election of a city clerk and fixing his salary.

At that meeting a successor to the prosecutor was appointed.

We think that this legislation, and the municipal action taken thereunder, created an office with a fixed term, and that the prosecutor cannot invoke the Veteran act to maintain his tenure. Gilhooly v. Freeholders, 43 Atl. Rep. 569.

The legislation referred to manifestly was intended to enable the commissioners to fix the term of office, and the resolutions adopted by the commissioners in pursuance thereof leave no doubt that they availed themselves of the power so conferred.

The act of 1902 fixed the term at three years, and the only change worked by the subsequent legislation was to leave the duration of the term optional with the commissioners, and in either event the term of office was fixed.

If it be contended that the latter legislation was subject to the provisions of the Veteran act, upon the theory that such was the legislative intent, the answer is that the Veteran act expresses its own limitation, and applies only to offices whose terms were not fixed by law at the time of the passage and approval of the act.

The passage of the resolution creating the office and fixing the term of city clerk was tantamount to a law, and, obviously, was operative as such within the municipality. Hardy v. Orange, 61 N. J. L. 620.

In any event, we cannot give to the act in question, in the absence of a clear legislative intent to that end, a construction which in effect would annul the power vested in the commissioners by the acts under which they are constituted and which contemplate the appointment of officials for fixed

terms.

The case of Stewart v. Freeholders, 61 N. J. L. 117, is not analogous. There the prosecutor held a position only, and it was held that such a place did not come within the language of a statute, which fixed the terms of officers only. Here the

commissioners had the undoubted power to fix the term of the office in question.

The result is that the resolution under review will be affirmed.

LAWRENCE MAXWELL ET AL., EXECUTORS, &c., PROSECUTORS, v. EDWARD I. EDWARDS, COMPTROLLER OF THE TREASURY OF THE STATE OF NEW JERSEY, ET AL., DEFENDANTS.

Argued June 6, 1916-Decided November 29, 1916.

1. The Inheritance Tax law (Pamph. L. 1909, p. 325), as amended (Pamph. L. 1914, p. 267), is a succession and not a property tax, and does not violate any provision of the federal or state constitutions intended to secure equality of rights.

2. The act of April 9th, 1914 (Pamph. L., p. 267), amending the Inheritance Tax law (Pamph. L. 1909, p. 325), if discriminatory at all, discriminates when considered with cognate legislation in favor of the non-resident, and, although it does not produce absolute equality, it is a workable rule, and a step in the evolu tion making for practical equality of taxation in so far as such equality can be evolved under our dual system of government, and is therefore valid.

On writ of certiorari removing state tax.

Before Justices SWAYZE, MINTURN and KALISCH.

For the prosecutor, Coult & Smith, and Edward DeWitt, of New York.

For the state, John W. Wescott, attorney-general, and John R. Hardin.

The opinion of the court was delivered by

MINTURN, J. The writ is intended to review an assessment of a transfer tax, imposed by the state comptroller, upon

certain personalty in this state, of which James McDonald, a non-resident, died possessed.

The property in question consists of certain stocks in the Standard Oil Company, and in six other New Jersey corporations, valued in the aggregate at $1,114,965. The deceased died in the District of Columbia, leaving a last will and testament, and a codicil, which were duly admitted to probate, and letters testamentary granted thereon in that district to Lawrence Maxwell of Ohio, and the Fulton Trust Company of New York, a corporation organized under the laws of that state, who have qualified as executors. The beneficiaries named in the will were at the time of testator's death non-residents of this state. The total amount of the state tax imposed was $29,071.68, the legality of which assessment is the subject of this litigation.

The tax was imposed in pursuance of chapter 228 of the laws of 1909, as amended by chapter 151 of the laws of 1914. A subsequent amendment was passed in 1915 (Pamph. L., p. 745), but was not effective or in operation at the time of the death of the testator, and therefore has no bearing upon this issue.

The act of 1909 was the original act dealing with the subject-matter of this contest, and presents in its title a clear statement of the legislative intent, "An act to tax the transfer of property of resident and non-resident decedents, by devise, bequest, descent, distribution by statute, gift, deed, grant, bargain and sale in certain cases."

It is insisted that in imposing the tax the decisions of the New York courts construing a statute substantially similar in verbiage to the act in question, should have been followed by the comptroller. This contention, however, has been dealt with by this court in Hopper v. Edwards, in an opinion by Mr. Justice Trenchard, and quite recently in Torrance v. Edwards, in an opinion by Mr. Justice Kalisch, both adjudications being adverse to the claini urged here. That question therefore may be disposed of upon the doctrine of stare decisis.

The effect of the legislation under consideration has been determined by this court, and the Court of Errors and Appeals