52 N.J.L. 487 | N.J. | 1890
The opinion of the court was delivered by
On the 25th day of March, 1886, a rule was granted by this court, that the township committee óf the township of Neptune, in the county of Monmouth, do show caiise why a writ of mandamus should not issue commanding the said committee to pay over forthwith all money due to George W. Rogers, agreeably to the provisions- of an act entitled “An act for the preservation of sheep,” approved April 14th, 1846, and the supplement thereto, approved March 29th, 1866.- Rev., p. 19, pi. 29. The names of those who constituted the township committee for the year 1886 are not mentioned in the rule, nor do they appear in the proceedings.
The act of March 24th, 1852, requires the person who has sustained damage by dogs to have it appraised according to the act of April 14th, 1846, and to present the certificate of appraisement to the township committee on the first Monday of September in each and every year, and the committee, after having received said bills up to that day, shall consider their amount as the amount of damage done for that year to be assessed on the number of dogs in said township as returned by the assessor.
The town committee, after having ascertained the amount of damage done and the number of dogs, are authorized to levy such amount of tax on each and every owner of a dog as shall be sufficient to pay the whole amount of damage done to
The said tax is to be collected by the township collector. Rev., p. 18, pl. 21, 22, 23.
To entitle relator to the mandatory writ, it must appear ..that the town committee had the requisite fund to pay thedelator’s claim.
So far as the case shows, no default appears on the part of the town committee. :
It is not shown that the committee failed to make the proper assessment and to enter it in the duplicate.
It is not shown that the collector succeeded in collecting the tax or any part of it, or that the committee ever received the fund to be appropriated to this object.
The application for a mandamus is against the township committee of Neptune, and not against the individuals who composed that committee in 1886.
The 'present committee are not charged with the duty of paying damages for the year 1886 ; the fund for that purpose did not come into their hands.
The town committee for the year 1886 were trustees of the .fund, if they received it, and were the agents of the law, and not of the people of the township. The fund out of which ■the relator claims remuneration was to be raised, not by general tax on the people of the township, but only on the owners •of dogs. ■ For misappropriation of the fund, or for the refusal to appropriate it according to law, the township is not responsible. The relator must look to the individuals who have received it, and not to their successors in office. The Inhabitants of Washington v. Applegate, 2 Zab. 42.
The mandamus is refused, with costs.
