35 N.J.L. 377 | N.J. | 1872
The legal voters of School District No. 4, of Eatontown, in the county of Monmonth, upon the call of a special meeting by the trustees of that district, met on Tuesday, April 12th, 1870, and by a vote of two-thirds of the persons preseut, ordered the sum of $1200 to be raised by taxation to finish and furnish the school-lionse. Their resolution was, to borrow the money in the first instance, and afterwards to raise the amount by taxation in that year. The tax was assessed upon the inhabitants of that part of Ocean township which formed a portion of the school district, for their proportionate share of the tax, namely, $976. Some of
This objection cannot prevail. It was laAvful for the legal voters of the district, when regularly convened at a special meeting, to reconsider their former action. There is no prohibition of such action in our school laAV. The right to act for such purposes at a special meeting, is held in a recent case. State v. Greenleaf, 5 Vroom 441, decides that section thirty-nine of the school act of 1867 authorizes the call of such meeting, and the transaction of such business, Avhen set forth in the notice.
But however erroneous the judgment of the commissioners may be in setting aside the particular assessments before them on appeal by some of the tax-payers, their determination Avas conclusive in protecting and restraining the collector from proceeding to collect these taxes, until the matter should be otherwise judicially settled. State v. Perrine, 5 Vroom 254. This has not been done, and the appellants are not here before us to have their rights adjudicated. This is a proceeding between the incorporated school district and the collector of taxes.
There was no default, therefore, in the collector, in his neglect or refusal to collect these particular taxes from the appellants. It appears, however, that he not only did not proceed to collect the taxes of those who had appealed to the commissioners, and for whom they had given judgment, but he also neglected and refused to collect this special school tax from those in the district who had not appealed. This Avas Avrong.
This tax was assessed in 1870; no return of delinquents lias been made; no tax warrants liavo ever been issued; no such proceedings appear in the statement of facts agreed upon. The whole machinery of the law for the collection of these taxes lias been stopped since the duplicate was delivered to the collector. By the eightieth section of the school law, the money ordered to be raised for school purposes shall be assessed, levied, and collected at the time and in the manner that other township moneys are assessed, levied, and collected. This time and manner have been entirely disregarded by the collector. In the spring of 1871 his term of office expired, and he had done nothing then. As his term of office then ended by its own limitation, lie would, after that time, be powerless to obey the mandate of this court, if he should be directed to proceed and collect the tax. This would bring this case directly within the decision of State v. Perrine, before cited. It was there held that a mandamus would not be allowed after the collector’s term of office bad expired. But it appears lie was re-elected collector for the township of Ocean, in the spring of 1871, and now holds that office, and it is said the writ may now go to him to collect these taxes. But lie cannot, as the collector of 1870, take up the tax dupli
Theacts of 1868, (Nix. Dig. 958, § 121, and Laws 1869, p. 612,
If'the persons assessed were before the court, and there were difficulties in proceeding with the collection under the statute, the court might afford a remedy by attachment. Smith ads. State, 2 Vroom 216; Person v. Warren Railroad, 3 Vroom 441; Camden v. Allen, 2 Dutcher 398; Silverthorne v. Warren Railroad, 4 Vroom 372.
It appears, by this case, which is rare and exceptional, that
The defendant is responsible for his failure in the performance of his official duty, except so far as he is protected by the action of tlie commissioners of appeal in remitting certain of these taxes ; but, upon the facts as they appear before us, other remedies provided by law should be used, rather than the writ of mandamus for which application is here made.
While this result may release many of the tax-payers from paying a legal assessment of this special school tax, yet it will be seen that injustice would be done by compelling them to pay a tax from which many others, equally bound with them, have been discharged by the commissioners of appeal. Another vote by the legal voters of the district, at tlie coming animal meeting, may relieve them from the embarrassments caused by the mistake of the public officers in collecting this former assessment.
The writ of mandam/us is refused.
Justices Bedle and Dalrimple concurred.
Rev., p. 1161, § 97-98.