44 N.J.L. 445 | N.J. | 1882
The opinion of the court was delivered by
This case comes before the court by virtue of a writ of error to the Circuit Court of the county of Somerset, and the grounds of the errors that have been assigned are contained in the several bills of exceptions which are on file with the other papers in the cause. On the side of the defence a preliminary motion was made to strike out these bills, or to induce the court to decide that the assignments based upon them must be disregarded. Inasmuch as there are no errors that are alleged to exist in the record itself, this application, if acceded to, would dispose of the suit as it exists in its present form before the court.
The ground taken in favor of this motion is that the bills of exception in question have not been transmitted to the court at the time and in the manner required by the two hundred and forty-fifth section of the Practice act, (Rev., p. 887,) which declares that “every bill of exceptions shall be returned and filed with the writ of error and record in the case; and un
In disposing of this question, it must be assumed that these bills have been properly obtained and legally executed, for, although they were evidently signed by the judge long after the term at which the trial occurred, the only admissible inference, in the absence of all evidence upon the subject, is that such act was warranted by the circumstances. On the basis, then, of the bills being in themselves in all respects formal and legal, the point is are they to be set aside on the sole ground that they were not returned to the court simultaneously with this writ of error? The complaint is that a statutory form has not been complied with.
The objection, I think, should not prevail. This default of the plaintiff in the conduct of his cause has been waived by the act of the defendant in passing by the irregularity without notice, and putting in a plea to the assignments thus informally made. It was certainly competent for the defendant in error to adopt the course of taking the issues thus tendered if he saw fit so to do, instead of moving to vacate them by force of the statute. The right to object to an irregularity of this kind must cease at some stage of the proceedings, and it appears to me that it would be altogether unreasonable to continue such right after the taking of so decisive a step as this on the part of the defendant. The plea to the assignments is a conclusive admission that they are properly in the case.
In opposition to this view, the counsel of the defendant in
This point is not well taken.
Turning, then, to the assignments of error in connection with the bills of exceptions, I find but two of the objections taken to the proceedings at the trial which appear to be of such solidity as to require discussion or a statement of the grounds of decision.
The first of these is the exception to the admission of evidence touching certain items contained in two amendments to the bill of particulars which was originally furnished by the plaintiff in the court below.
The case shows that this suit had slept, by consent of the parties, for several years, and after such interval of time, an application was'made to one of the justices of this court to amend the primary bill of particulars, and such application
It is thus insisted that this court is bound to review on this writ of error the two judicial orders which authorized the amendments above described.
But the position is plainly untenable. Even if this court were empowered by the express terms of a.statute to supervise orders of this character, as this ease is now presented, that function could not be discharged. The court might, indeed, render a blind judgment in this respect, but it could not, in any reasonable sense, revise the decisions in question, for it is not in possession of the facts on which such decisions proceeded. There is nothing here present to show what were the circumstances,, either proved or admitted, before the justice which induced him to yield to the application for these amendments. In the absence of proof the legal presumption must be that this judicial action was based on solid grounds. That such grounds may have existed is apparent, for it cannot be-rationally contended that additions such as these could not lawfully be made to a bill of particulars in any possible condition of affairs, such as, for example, the case of items omitted from the particulars by reason of the fraudulent practices of the defendant. The fact that the superadded items are of long standing, and, on account of the statute of
' But I think it likewise plain that, according to legal principles long since settled by a course of decisions in this state, this is not a subject that falls under the cognizance of this court. A writ of error will not lie to remove, for review, directly or indirectly, orders of this character. It was long since decided by this court in the case of Den, ex dem. Ruther
The second considerable exception relates to one of the legal propositions contained in the charge of the judge at the trial.
The defendant had been one of the chosen freeholders of the county of Somerset, and the suit was, mainly, to recover various sums of money which it was alleged he had fraudulently obtained on spurious accounts for work pretended to have been done on the bridges of the county. Some of these charges were for repairs costing less than $50, and others for repairs costing less than $500 and more than $50. •
Section 2 of the act respecting bridges provides “ that when the expense of erecting, rebuilding or repairing a county bridge shall exceed $50, and be less than $500, it shall be the duty of the overseer of the highways within whose limits or division the same may be, or either of the overseers of the highways of the adjoining townships, to give notice, in writing under his hand, to the chosen freeholders of such township and of the two next adjoining townships, and in such notice to appoint the time and place of their meeting, and the said
To this construction of the statute I am unable to agree. It appears to me to be opposed to the legislative design, as it is manifested in the several acts relative to this subject. By the statute constituting the board of chosen freeholders, that body is made the agent of the county for executing all its legal purposes, objects, business and affairs, and is authorized to “ vote, grant and raise ” such sums as it may deem adequate for the building, purchasing or repairing of poor-houses, jails, court-houses and bridges, “and for defraying the public and necessary charges,” and to see to the disbursement of such moneys. It is apparent, therefore, that if this act stood by Itself, and out of connection with other legislation, that the power of this body thus constituted over the entire subject of the building and reparation of bridges, would be unquestionable, and the question, therefore, arises whether this authority thus broad and thus plainly granted is trammeled or curtailed by the provisions of the bridge act which are above quoted. I see no reason to suppose that such was the purpose of that legislation. It seems unreasonable to attribute to the legislature the design, when it empowered certain members of the board to deal, in their discretion, with particular matters of minor importance, to circumscribe by such an adjustment the power of the corporate body. As a matter of convenience such an arrangement was obviously judicious, but as a limitation on the authority of the corporation, unnecessary and worse than useless. "We can readily understand why those freeholders living in the neighborhood of a bridge requiring repairs at a cost not more than $500, should be authorized to direct such work to be done, because such a power dispenses with a convocation of the entire board, and is in ease of the execution of the official duties imposed by the act, but it does not follow that such a power is exclusive of the power of the board. The act relating to the chosen freeholders and the act relating to bridges are in pari materia, and are, therefore, to be harmonized as far as possible, and as the former gives to the
In the case of Morrell v. Dinfield, 30 Me. 157, a question similar to that above discussed was presented for decision to the Supreme Court of Maine. By a statute of that state a surveyor of the highways was authorized, when out of means, to employ, “with the consent of the selectmen obtained in writing,” persons to do the unfinished work, and, in the reported case, that officer incurred such expense without the written consent required by the act, and, in the opinion of the court, it is treated as incontrovertible that, under such circumstances, a legal debt would have been imposed upon the county if the transaction had been subsequently ratified by the body of the selectmen. There was no suggestion in the case that the power given to the overseer to act in the matter under the written consent of the designated officers,
With respect to the power of a corporation to ratify contracts which have been irregularly entered into in their behalf, the rule of law is now clearly defined in the books. These decisions do not leave it in doubt that when the charter authorizes a contract to be made by the corporate body in a certain mode, whereby the power of such body is intended to be limited, its officers and agents cannot bind it in any other manner. In such cases only a limited power is granted, and consequently an act done beyond the scope'of such power is void. Illustrations of this doctrine are to be found in those cases in which, as in the case of Brady v. Mayor, &c., of New York, 20 N. Y. 312, it is required of the corporate body to put out the public work to the lowest bidder, for as such a requisition is a circumscription of the power of the corporation, it has invariably been held that any other method of contracting is illegal, and consequently cannot be subsequently validated by a ratification. The rule of law is, that it is only when the corporation has the right to enter into the given contract that it can legalize it after it has been performed under an authority of its unauthorized agents. In the present case, therefore, if the work in question were illegally ordered, the subsequent assent of the board of chosen freeholders would convert the money so earned into a legal debt.
My conclusion is, with respect to the claims in question, the jury should have been instructed that if they believed such claims to be honest, and that the transactions out of which they arose, even though the original orders for the work had been irregular and not legally authorized, had been ratified by the board of chosen freeholders, the plaintiff, so far forth, was not entitled to recover.