24 N.J.L. 764 | N.J. | 1853
Samuel Evans was treasurer of the city of Trenton, from the year 1837 to 1841. He held the office by appointment of the common council, and his salary was fixed by ordinance at ten dollars per annum.
In 1837, the city council passed an ordinance authorizing the borrowing of twenty thousand dollars upon certificates to be issued by the city, bearing an interest of one per cent.; and made it the duty of the treasurer to sign these certificates, as treasurer, to redeem them when presented, and to loan out the money thus borrowed, on bond and mortgage. The execution of this ordinance was committed to the finance committee of the council and the treasurer, and in pursuance of the power thus vested in them they issued certificates of loan, in sums ranging from five cents to two dollars, to the amount of the sum thus authorized to be borrowed, aud the present controversy grows out of this transaction.
In the final settlement of his accounts, Mr. Evans retained in his hands five hundred dollars of the funds of the city, which he refused to pay over to his successor in office. Whereupon the city brought suit against him for the recovery of this balance.
I. On the trial of the cause at the circuit, after the plaintiffs liad rested, the defendant called a witness to prove that “ he had performed for the plaintiffs certain services for which he claimed compensation; that these services were not performed by him as treasurer of the city, but as treasurer of the finance committee; that said services consisted in preparing for circulation certain tickets of the denominations of five, ten, twelve and a half, fifteen, and twenty-five cents, and one and two dollars, to the amount in the aggregate of twenty thousand dollars; that at great labor he
The plaintiffs objected to this evidence, and insisted that even if the facts were proved as offered, they constituted no legal defence to the action. The judge who tried the cause sustained the objection, and the defendant excepted.
This ruling is the first ground assigned for error which I consider it necessary to notice.
It is a well settled rule, that a person accepting a public office with a fixed salary, is bound to perform the duties of ,the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services. Nor does it alter the case that by subsequent statutes or ordinances his duties are increased and not his
This rule is of importance to the public. The successful effort to obtain office is not unfrcquently speedily followed by efforts to increase its emoluments; while the incessant changes which the progressive spirit of the times is introducing, effects, almost every year, changes in the character, and additions to the amount, of duty in almost every official station; and to allow these changes and additions to lay the foundation of claims for extra services would soon introduce intolerable mischief. The rule, too, should be very rigidly enforced. The statutes of the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to public offices; and it requires but little ingenuity to run nice distinctions between what duties may and what may not be considered strictly official; and if these distinctions are much favoi’od by courts of justice, it may lead to great abuse.
General rules find often their best illustration in particular examples. Now in this case, by the ordinance of 1837, authorizing the twenty thousand dollar loan, it was made the duty of the treasurer of the city to sign, issue, and redeem the certificates, and disburse the money raised. His offer was to show that he prepared these tickets for circulation ; separated, trimmed, and numbered them ; issued them; loaned out the money thus obtained; redeemed the tickets when called upon; re-issued them; kept them in circulation for more than two years; and finally paid them off. These, he alleges, were extra services, for which he was entitled to the five hundred dollars which he claimed. But clearly a
Nor was it competent for the defendant to set up any understanding had with the finance committee of the common council, that he was to have extra compensation for these services. The ordinance that fixed his salary fixed his compensation, and it could not be changed by any understanding had with individual members of the council, whether acting as a committee or not, unless he first showed that those with whom he had such understanding had been empowered by some ordinance to enter into an agreement of the kind. Equally untenable was the proposition, that in rendering these services he acted as the treasurer of the finance committee, and not as treasurer of the city, and was so recognized as acting and accounting by the committee and the council. There was no such office known to the law. He had no authority to perform these duties in any such assumed capacity, and any apparent recognition of him in such capacity must he considered as an inadvertency on the part of the committee and the council.
But the rule, nevertheless has its limit. It does not follow from the principle laid down, that a public officer is ■bound to perform all manner of public service without compensation, because his office has a salary annexed to it. Nor is he in consequence of holding an office rendered legalty incompetent to the discharge of duties which are clearly extra official, outside of the scope of his official duty. And I think we have in a part of the offer made by the defendant, a clear illustration of this principle. To carry this ordinance into effect, a large number of these certificates or
But it is said this suit is brought by the plaintiff against the defendant for money received by him as city treasurer, and that he cannot set off against it a debt due him from the city in liis individual right; that it was his duty to pay the money over to his successor in office, and if he had a just claim against the city he was at liberty to sue for it. The answer to this is that the suit is brought against him in his individual capacity and not as late treasurer, is in assumpsit, in the usual form, for money had and received by him for the use of the city generally, and not in any official capacity, and, therefore, the objection does not apply.
The judgment mast be reversed. But it may-save trouble hereafter in this case, to express an opinion upon another part of the defence offered to be set up.
II. In the second place, the defendant at the trial below offered to show “ that although the said ordinance of 1,837 on its face purports to be for the purpose of raising money for the building of the city hall and for other purposes, that in point of fact and according to the real design of the ordinance, the said money was illegally raised and appro
The statute of the 15th February, 1815, prohibited banking without the authority of the legislature, Rev. L. 573; and that of 16th February, 1831, declared, that it should not be lawful for any person or body corporate to issue, or pay away, pass, exchange, or transfer, or cause to be issued, paid away, passed, exchanged, or transferred, any ticket of any denomination whatever, intended to circulate for the payment of debts, dues or demands, in lieu of or as a substitute for bank notes or bills, or other lawful currency of the state, without first having obtained a law for that purpose. Har. Com. 361. And these laws being in force at the time of the passage of the ordinance of 1837 by the common council, and during the two succeeding years through which the transactions growing out of that ordinance took place, to wit: the issuing, re-issuing and redeeming of the certificates of loan authorized by it, the object of the defendant was to show the nature of those transactions, and to insist that though the ordinance on its face might not have been violative of these laws, yet these transactions under it were so. And he now insists that if he had been permitted to show this upon the trial it would have been a good defence against the suit brought against him by the city.
It is unnecessary to cite authorities, for the books are full of cases going to show that contracts are illegal when founded on a consideration contrary to good morals, or when they are against the principles of sound policy, or founded in fraud, or are in contravention of the positive provisions of some statute law; and that courts will not lend their aid to enforce such contracts, on
But the most salutary rules are always liable to abuse in their application to cases not within the range of the principles they are intended to establish, or the mischief it is their purpose to prevent. And the rule that courts will not enforce illegal contracts does not apply to the case of third parties who have no interest in, or connection with the illegal contract itself. If, for instance, the money be not paid over, but remains in its transit, in the hands of an intermediate stakeholder, the law will not permit such third person, who is only thus incidentally connected with the transaction, to set up the illegality of the contract, between the principal parties. * A mere agent cannot shelter himself from paying over the money by such a plea, and the money advanced may be reclaimed. 2 Kent’s Com. 467; Colton v. Thurland, 5 Term R. 405; Smith v. Bickmore, 4 Taunton 474.
In Hartleton v. Jackson, 8 Barn. and Cress. 221, Bayley, J. after reviewing the cases, said, “It is now a settled rule, that where a wager has been laid on the event of a boxing match, either party may recover his own stake from the holder;” and that “if a stakeholder pays over money without authority from the party, and in opposition to his desire, he does so at his own peril.” If he pays over the money with the assent of the parties, the case is different; and inattention to this distinction formerly created some confusion in the oases. Howson v. Hancock, 8 Term R. 575, was a case of this kind. The case of Tenant v. Elliot, 1 Bos and Pul. 3, and Farmer v. Russell, 1 Bos. & Pul. 296, settle that where the loser of an illegal wager has paid the money into the hands of an agent for the winter, the agent cannot set up the illegality against the claim of his principal.
Suppose the doetrine contended for by the defendant to be law, a treasurer of a city corporation, authorized under
Upon the whole, I am entirely clear that the evidence offered under this second head was incompetent, and was properly overruled; and that it would have been so, even if the defendant in his offer had gone so far as to propose to show that the five hundred dollars he retained was a part of the proceeds of this very ticket transaction; which, in closely examining his offer, I do not see that he did.
As to the other errors assigned, they were not pressed on the argument, and I do not think it necessary to notice them further than to say, that they do not appear to be sustained.
Let the judgment be reversed upon the first point taken.
For Reversal — The Chancellor, Judges Potts, Arrow-smith, Elmer, Ogden, Risley, Cornelison, Huyler, Valentine and Wills.
For Affirmance — None.
Judgment below reversed.
Cited in Huncke v. Francis, 3 Dutch. 68