40 N.J.L. 604 | N.J. | 1878
The opinion of the court was delivered by
The township of New Barbadoes sued the defendant below, in assumpsit, for the recovery of fees re
The exceptions argued in this court- relate to two questions,, ruled adversely to the defendant below.
First. Were the fees now sought to be recovered, illegally charged by the collector; and, Second. Does the action of the township committee in auditing and approving the bills and. settling with the collector, preclude the township from recovering them back?
That the fees were illegally charged, is apparent from the words of the act of April 11th, 1866. Rev., p. 1160, § 88. By this section, which is the statutory provision applicable to-the case, the collector is entitled to receive twelve cents, and no more, for each name on his duplicate, for collecting all the taxes collected by him; and no name occurring on the duplicate more than once, is to be counted as more than one-man. This language was properly adjudged by the court' below to mean twelve cents for each name for all taxes inclusive, state, county, township, school, poor, poll, dog and other taxes, except so far as the section has been modified by subsequent legislation. The suggestion that the words “all taxes ” can be treated as distributive, giving twelve cents or-less for each separately, instead of for all conjunctively, cannot be supported. In the present case the defendant, in addition to the twelve cents per name, apparently for state taxes,, charged and received for other particular taxes, such as county, school and bounty taxes, in some instances six and in other instances eight- cents per name. These were disallowed below,, except so far as provided for by the subsequent acts of March
"Second. Having been paid with the approval of and on settlement with the township committee, can they be recovered in this suit ? That they could not be recovered, was contended for by the plaintiff in error on the ground that they were voluntary payments by the committee, with full knowledge of the facts, and without mistake or fraud; and also upon the further ground that the committee, in examining and passing upon the collector’s accounts, were judges, and that their judicial action cannot be impeached in this suit. Neither of these contentions can prevail. The powers of the township committee are only those conferred by statute. In Callahan v. Morris, 1 Vroom 160, they are held to have no common law power to bind the township, and the importance is adverted to of protecting the people against their own servants by confining them within the strict limits of the powers conferred by law. By section twelve of the act respecting townships, (Rev., p. 1195,) it is enacted that they shall have authority and that it shall be their duty to examine, inspect and report to the annual or other town meetings the accounts and vouchers of the township officers, and superintend the expenditure of township moneys. Here is nothing indicating or suggesting for them the character of judges, whose function it is to hear parties and determine between them. They were correctly held in this case to be auditors to examine, inspect and report—the clerks or servants of the corporation, and not its judges to’hear, try and determine without notice. The committee and the collector both derive their powers solely from the legislature, and each is presumed to know the limit of the powers possessed by the other. The committee are the agents of the township only so far as they act within the express provisions of the law. Payments made or sanctioned by them not authorized by legislative enactment are ultra vires, outside of their agency, and cannot bind -their principals, the people.
The evidence seems to show a demand made before suit, but if no demand made the suit itself is sufficient.
The judgment below should be affirmed, with costs.
For affirmance—The Chancellor, Chief Justice, Depue, Knapp, Reed, Scudder, Yan Syckel, Woodhull, Clement, Dodd, Green, Lilly, Wales. 13.
For reversal—None.