INHABITANTS of MENDHAM vs. LOSEY.

IN ERROR.

Overseer of highways may not sue township for money laid out by him on roads, beyond the sum raised or ordered by the township.

THE action in the Common Pleas was brought by Losey, as late overseer of a district of road, against the inhabitants of the township, for work and labor, care and diligence of himself and servants, with their oxen, carts, and carriages, done and performed in opening, clearing out, making, working, mending, repairing, and keeping in good order, a certain division of the highways in the said township, of which he was overseer. The town had resolved to work and repair their roads by hire. There were counts on a quantum meruit for money laid out and expended, and for money had and received; the general issue of non-assumpsit pleaded-verdict and judgment for the plaintiff below. In September term last, this cause was argued exparte, in behalf of the inhabitants of the township, the plaintiffs in error, by

Mr. I. H. Williamson. In the first place, he contended, [*] that an action of assumpsit on an implied contract, could not be maintained against an aggregate corporation; that the contract must be express, and made under the seal of the corporation, for which he cited 1 Blac. Com. 475, 4 Comy. 258, 3 Dallas 496; and he said that there was nothing in the act incorporating townships that dispenses with the common law.

Second: He contended that an action could not be sustained by an overseer of the road, for money expended by him at his discretion. On this point, it appeared in evidence, by a bill of exception taken by the plaintiffs in error on the trial below, that the district of road, on which the labor was bestowed, was very bad and wanted repair; and that $120 was not an extravagant sum to pay for the work done by the plaintiff below.

Third: Mr. Williamson contended that the evidence was not sufficient to maintain the action, and therefore, that the Common Pleas ought to have non-suited the plaintiff. It not being proved that the district of road on which the labor had been bestowed, had been assigned to the plaintiff below; that the assignment should have been in writing by the township committee, and delivered to the overseer. On this head, it appeared in evidence, at the trial below, that the township committee, whose duty it was to assign the district to particular overseers, kept a book of the minutes of their proceedings; but that this book was not produced at the trial; but it was proved, that in 1800, the town commit

tee assigned the district in question to one Jacob Losey; that in 1801, Jacob Losey was re-elected an overseer of the road; and in 1802, that Jacob Losey was left out, and that the plaintiff below was elected in his room.

Mr. Williamson also contended, that the defendant should have accounted with the township committee annually, and should produce vouchers and could not recover on a quantum meruit; that the inhabitants of [*] the township, under the authority given them by the act of incorporation had made a bye-law, requiring overseers of the road to render their accounts under oath; that, therefore, the defendant ought to have rendered his account under oath, which from the bill of exception it appeared that he had not done. It appeared that the township had voted to raise one thousand dollars in 1802, for the support of the highways; that the value of labor on the said roads be the same as usual; that the overseer of the road shall be the collector of the road tax within his own district, and be accountable for the same to the town, and subject to the same fines and penalties as the collector for other taxes. At this term the following opinions were delivered:

KIRKPATRICK, C. J.-I think there are several reasons upon which this judgment must be reversed. I shall speak of one only. One which goes not to mere matter of form, but to the very right of the action itself.

The plaintiff was one of the overseers of the highways of the township of Mendham, in the county of Morris, and this action is brought to recover from the said township, a certain sum of money by him laid out and expended, in repairing the said highways, and keeping them in order. It is not pretended, that there was any special order or vote of the township for the making of these repairs, or for the laying out of more money, by the overseer, upon the said highways, than was provided by the township for that purpose. The principal question then presents itself:-Can an overseer of the highways lay out any sum in repairs, which to him may seem proper, and then call upon the township for reimbursement?

By the 2d section of the act of March, 1798, (a) which is the first on this subject, it is made the duty of the overseer to repair, &c. unconditionally, and without any reference to the amount of money to be put into his hands. By the 3d section, it is required, that the [*] money necessary for this purpose shall be granted, &c. by the township, at their stated town-meetings, and it is enjoined upon them, that they have (a) Pat, 325, Rev. L. 621-2.

it in hand, ready to advance, &c., and by the 6th section, the overseer is made liable to presentment, fine, &c. for the badness, want of repair, or deficiency of the said highways; and even if the township shall be amerced or fined thereupon, the overseer is made liable to return the money.

Upon these provisions of this act, it has been thought, and not without some reason, that as the overseer was liable to be presented, informed against, and fined for the badness of the highways, he was obliged, at all events, to keep them in reasonable repair; and if not previously furnished with money, that he must look to the township to refund what he had exhausted, and to pay him his wages.

But, however general'the act may be in its expression, it is hardly to be presumed, that the Legislature intended to lay such a burthen upon the overseer. In many cases, it would be impossible for him to bear it; he might have neither money nor credit, and, if concerned in a wayward township, might be totally ruined.

The act expressly enjoins that the township shall have money in hand ready to advance, &c., and it must have been upon this supposition, that this injunction would be strictly observed, that the overseer is subjected to penalties; in short, that if he failed in repairing, it must be his own fault. The act, it appears to me, upon any other construction, would be unequal and unjust.

I should think, therefore, that it would have been a good plea, even under this act, in case of presentment or information, to say that the township had not furnished money; and if so, the strongest argument in favor of the position, that the overseer may expend according to his own discretion, fails.

But however doubtful this construction may have been, upon the words of this act, it is now put beyond all doubt, by the act of December, 1801, (a) in which it is [*] expressly declared, that if the overseer shall make it appear, that there was no money in hand, ready to be advanced, he shall be exonerated from the fine. This may be considered as a legistive explication of the first act; and this is that too, under which the plaintiff acted. He was then under no necessity from the provisions of the law, to go further than the money in hand would carry him; nor had he any special order or direction from the township to do so. Upon what principle then, can he ground his action of assumpsit? Can a man lay out money for me without my request, and then call on me for payment? Can he put his judgment in the place of mine, and bind me by that judgment, saying it was beneficial

(a) Bloom. 83, not published in Rev. L. Sed vid, ib. 626, Sec. 36.

to me? Let us inquire then, to whom has the law entrusted the powers of determining, to what extent, and at what expense roads shall be repaired, and to what amount the township shall be taxed for this purpose?

The act for incorporating townships, &c. I think answers this question. By the 8th section of that act, it is enacted, that the persons qualified to vote at town-meetings, shall be empowered to raise such sum or sums of money, for the opening, making, working, and repairing of roads, and keeping them in order, as they, or the major part of them shall deem necessary; expressly giving the discretion and judgment of the matter to the township, and not to the

overseer.

Besides, it is contrary to the whole theory of our institutions, to give to any one man the power of taxing the people according to his discretion.

The money laid out by the overseer, therefore, in this case, is laid out without authority. He has no action to recover it against the township.

I think, on this ground, the judgment must be reversed. ROSSELL, J.-Concurred.

PENNINGTON, J.-I very much lament, that the unskilful [*] wording of our acts of Assembly, should lead to a discordance of opinion on the bench; but I cannot bring my mind to agree with my brethren in this case.

The first objection taken by the plaintiffs in error is, that an action of assumpsit cannot be maintained against an aggregate corporation; and the reason assigned for this is, that a corporation cannot contract, unless under the seal of the corporation. (a) This is not universally true, even at common law; a corporation aggregate, may appoint a steward, or other servant, without the corporate seal, and I apprehend, that in such case, an assumpsit would be raised by implication of law to pay him his salary or wages, if any precise sum was fixed by an ordinance of the corporation, and if not, I can perceive no reason why a quantum meruit would not lie. In the present case, the whole of the proceeding is marked out by law. The inhabitants of the township, in conformity to the act of Assembly, elect to work their roads by hire; the statute directs the whole procecding; no corporate act under seal is required or necessary to give validity to any of them.

The second error complained of is, that an action cannot be sustained by an overseer of the highway, for money expended by him, at his discretion, in repair of the road; and

(v) Vide 3 Haist. 183; 2 Kent's Com. 233.

the reason assigned for this is, that if this was the case, the town would be exposed to great indiscretion and abuse, from the overseers. In cases of doubtful construction, argument arising from incovenience, are entitled to great weight and consideration; but it appears to me, that there can be no doubt in this case. The overseer of the highway is compelled to accept of the office, and to execute it under a penalty. The law makes it his duty to open, clear out, make, work, amend, repair and keep in good order, the highways within the limits assigned him; and to make causeways and erect such bridges as can be built by common laborers, and to procure whatever materials he may deem necessary for the purpose; and he is made [*] liable to be indicted or informed against by the Attorney General, for the badness, want of repair, or deficiency in in the highways within his limits; and on conviction to be fined; and even in case the township should be prosecuted and fined, in such case it may recover the fine of the overseer for his neglect; it is to be sure, made the duty of the town to have money in hand sufficient to advance for the purposes of repairing the roads. There is not, however, any thing in the act, that goes to show that the town not advancing the money, will excuse the overseer. It is true, that by a supplement to the road act, passed 2d December, 1801, (a) a new penalty is created and given against the overseers of roads, for neglect of duty; in which case, if the neglect takes place in those towns where the highways are worked by hire, the overseer is permitted to set up in his defence, against the penalty created by this supplement, that there was not any money in his nor in the collector's hands, for the repair of roads: in which case, the township shall be liable to the penalty created by the supplement. But I look upon this proceeding against the overseer, as an accumulative punishment; the punishment by indictment and fine is not taken away. Besides, even in this case, the overseer being destitute of money, is no excuse; for if there is money in the hands of the collector, he is still liable to the penaltyand I apprehend that he cannot maintain an action against the collector; and if not, he must have his action against the township, or lose the money which he is bound to expend; his discretion is, however, limited to reasonable expenses. That he is bound to repair the said road assigned him, whether he hath money in his hands for that purpose or not, is apparent from the whole act, and especially the supplement, which is set up against him; for as it respects.

(a) Pam. 131. Bloom. 83.