Gibbs v. Morgan.

and denominated as his "deputy clerk," and gave to such deputy power, during the absence or inability of the clerk, to exercise all his powers and perform all his duties. But it was thereby provided, also, that "no additional compensation shall be paid to the deputy by the county."

The before-mentioned act of 1882, which is entitled a supplement to the last-mentioned act, if valid, in effect partially repeals the provision of the act of 1876, that deputy clerks shall receive

،،

no additional compensation from the county," and gives to the deputy clerks of counties where the clerk is paid by annual salary, a salary of $2,000 per annum from the county. It is an act giving a salary out of the county treasury to a certain deputy clerk or certain deputy clerks, as the case may be, and the only question to be considered is whether it is a special or local law. Deputy clerks are public officers, but they have no term in the sense in which the expression is used in the paragraph above quoted. They are employees of the county clerks, and their employment is a matter of mere private contract. The law merely constitutes them public officers, and gives them certain powers. It does not establish any particular period of service for them. That is left to private agreement. Since they have no term, in the sense in which the word is used in the constitution, it follows that the constitutional prohibition, when applied to legislation to create or increase their compensation, is unqualified. It must be by general law, and cannot be by local or special enactment. The constitution, it may be remarked, not only prohibits the passage of local or special laws for the purposes specified in the section of which part is above quoted, but directs that the legislature shall pass general laws providing for such cases. Const. art. IV. § 6 11. The fact that a person is a deputy of a clerk who is paid by annual salary, obviously in itself constitutes no reason for giving him an allowance out of the county treasury, to the exclusion of those who are deputies of clerks paid by fees. The labor and responsibilities of the deputy of a clerk paid by fees and not by salary may be ten times as great as those of the deputy of a clerk paid by salary, and yet, under the act, the latter would get $2,000 a year from the county, while the former would

Gibbs v. Morgan.

get nothing from that source. The fact that the clerk is paid by a salary is no indication as to the labor and responsibility of his deputy. It constitutes no true basis of classification.

"The true principle," says the chief justice, in Richards v. Hammer, 13 Vr. 435, "requires something more than a mere designation by such characteristics as will serve to classify; for the characteristics which thus serve as a basis of classification, must be of such a nature as to mark the objects so designated as peculiarly requiring exclusive legislation. There must be a substantial distinction, having a reference to the subject matter of the proposed legislation, between the objects or places embraced in such legislation, and the objects or places excluded. The marks of distinction on which the classification is founded, must be such, in the nature of things, as will, in some reasonable degree, at least, account for, or justify, the restriction of the legislation." It is said that the county of Camden is the only one in the state in which the county clerk is paid by salary, and that the act, in fact, applies, and was and must have been intended to apply to that county alone.

It appears that in this case the deputy clerk resigned his office ten days before the approval of the act of 1882, and was reappointed two days after its approval, and it is urged that the act is not within the constitutional prohibition, because it neither created nor increased his compensation during the term for which he was appointed. This claim has already been disposed of. He had no term within the meaning of the word in the prohibitory provision. The act is unconstitutional.

It may be added that under the views of the court in Freeholders v. Stevenson, 17 Vr. 173, the act is within another constitutional prohibition, that which forbids the passage of special or local acts regulating the internal affairs of towns and counties. The tax-payers ought to be protected against such legislation. They can have no relief in the courts of law. The county authorities, unless restrained by this court, will continue to pay the salary which it is alleged has so far been paid, and that, too, in monthly installments, although, by law, it is payable quarterly. The vice-chancellor, on whose advice the order for the pre

Demarest v. Vandenberg.

liminary injunction was made, in his "conclusions," suggested that the question of constitutionality be brought to a test in a court of law, and the injunction was modified so as to permit the bringing of such suit, and to allow payment on the judgment. Suit was brought accordingly, but it was permitted to go to judgment wholly undefended.

There will be a decree for a perpetual injunction, without

costs.

GARRET DEMAREST, a lunatic, by his guardians,

υ.

AALT VANDENBERG.

The complainant was, by a decree of this court, declared to be of unsound mind, and he appears in this suit (to foreclose a mortgage held by him) by guardians of his person and estate duly appointed. The defendant set up usury as a defence, and at the examination offered himself as a witness to prove it.-Held, that complainant (and not his guardians, "suing in a representative capacity") was the real party to the suit, and being under a "legal disability," within the meaning of the statute, the defendant was incompetent as a witness, and that the examiner should, under the two hundred and eighteenth rule, have rejected him,

Bill to foreclose. On appeal by complainant from decision of examiner as to competeney of witness.

Mr. William Prall, for complainant.

Mr. John W. Griggs, for defendant.

THE CHANCELLOR.

The bill is filed to foreclose a mortgage. The complainant is a person of unsound mind, so declared in this court by inquisition and decree. He appears in this suit by guardians duly appointed under those proceedings. The defendant. in his

Demarest v. Vandenberg.

answer, sets up the defence of usury. On the taking of the testimony before the examiner, he offered himself as a witness to prove the usury. The complainant's counsel objected to his being sworn, on the ground that he was incompetent to testify in his own behalf in the suit, because the complainant was prevented by legal disability from testifying. The examiner overruled the objection, and the complainant appealed from his decision.

The statute of 1859 (Rev. p. 378 § 3) did not wholly remove the disqualification of persons to be witnesses in their own behalf in suits or proceedings, by reason of interest in the event as parties. It excepted two classes of cases: one, where the opposite party was "prohibited by any legal disability from being sworn as a witness," and the other, "where either of the parties in the cause was sued in a representative capacity." The act of 1866 (Rev. p. 378 § 4) provided that a party to a suit in a representative capacity might be admitted as a witness therein, and if called and admitted as a witness in his own behalf, the opposite

Demarest v. Vandenberg.

party might, in like manner, be admitted as a witness. The act of 1880 (P. L. of 1880 p. 52) removed the restriction from the opposite party in cases where one of the parties to the suit sues, or is sued, in a representative capacity, so far as to render such opposite party competent to testify in his own behalf, except as to transactions with, or statements by, the testator or intestate represented in the suit. In cases where one of the parties is under legal disability, which prevents him from testifying, the other party is still incompetent as a witness in his own behalf. Insanity is a legal disability. In some of the states a party is excluded from testifying in his own behalf, where his adversary in the suit is insane, by statute particularly designating that disability by name. Our statute employs a general term embracing it.

It is urged, however, that in this case the complainants are the guardians, who sue in a representative capacity. The suit is brought by the lunatic; but being under disability, he must sue by guardian. 1 Dan. Ch. Pr. 82; Norcom v. Rogers, 1 C. Е. Gr. 484; Dorsheimer v. Roorback, 3 C. E. Gr. 438. The