City of Camden v. Varney

• Decision Date: 19 June 1899
• Citation: 43 A. 889,63 N.J.L. 325
• Parties: CITY OF CAMDEN v. VARNEY.
• Court: New Jersey Supreme Court

43 A. 889

63 N.J.L. 325

CITY OF CAMDEN

v. VARNEY.

Court of Errors and Appeals of New Jersey.

June 19, 1899.

(Syllabus by the Court.)

Error to supreme court.

Action by the city of Camden against Thaddeus P. Varney. Judgment for plaintiff. Defendant brings error. Affirmed.

Frederick A. Rex, for plaintiff in error.

E. G. C. Bleakly, for defendant in error.

COLLINS, J. The city of Camden, a municipal corporation, sued to recover alleged overpayments of fees by its treasurer to its clerk. The defense was—First, that the fees were paid upon a lawful exaction; and, second, that their payment was voluntary, through the order of the city council, with full knowledge of the facts, and without fraud on either side. The trial judge directed a verdict in favor of the plaintiff.

It was decided by the unanimous judgment of this court in Demarest v. Inhabitants of New Barbadoes, 40 N. J. Law, 604, that a township committee dealing with a collector of taxes are agents only so far as they act within express provisions of law, and that 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. It was further adjudged that unauthorized payments made by the committee to the collector might be recovered as money wrongfully had and received. The doctrine of acquiescence and voluntary payment, insisted on there as here, was held to have no place, because the payments were not by the township, nor with its sanction or approval. This decision controls in the present case, for it is entirely parallel. The right to any fees resting entirely on statute, the knowledge of the clerk of the limit of the council's authority must be presumed. We inquire, therefore, into the legality of the exaction.

The fees were demanded and paid for services relating to the vital statistics of the city. By "An act concerning marriages, births and deaths" (Revision), approved March 27, 1874 (Revision, p. 631), the clerk of every city in the state was required to keep a record of marriages, births, and deaths, and to send a copy annually to the secretary of state. For these services the city clerk was entitled to receive from the city treasurer 10 cents for the record of each marriage, birth, or death, and 5 cents for each marriage, birth, or death returned to the secretary of state. By "An act concerning the registry and returns of marriages, births and deaths," approved April 5, 1878 (P. L. 354), these provisions were expressly repealed, and a different system was instituted. The city clerks were no longer required to keep a record, but by section 10 of the new act were directed to transmit monthly to the secretary of state the actual certificates received by them, and became entitled to receive 5 cents for each marriage, birth, or death returned. Section 12 of the act provided that the secretary of state should send annually to the clerks of the courts of common pleas the returns from the respective counties, which returns the clerks were to arrange alphabetically, and index, for 3 cents for each certificate. In counties where there were boards of health, the clerks of such boards were to perform that service for the same fee. By a supplement approved March 12, 1879 (P. L. 117), section 10 was amended so as to increase to 10 cents the fees for each marriage, birth, or death returned. Section 12 was amended so that the secretary of state, instead of the county clerks, was to arrange and index the returns for each county, and was allowed for the necessary clerical service "the same amount as is now provided to be paid to county clerks for the same service"; and to the amended section was added this clause, viz.: "And in case of any county now having a county board of health, or of any city of over thirty thousand inhabitants, the clerk of...