Cotton v. New Providence

• Decision Date: 05 November 1885
• Citation: 47 N.J.L. 401,2 A. 253
• Parties: COTTON v. NEW PROVIDENCE.
• Court: New Jersey Supreme Court

2 A. 253

47 N.J.L. 401

COTTON

v. NEW PROVIDENCE.

Supreme Court of New Jersey.

November 5, 1885.

Action of debt on unpaid coupons of township bonds.

Mr. Hogate, for plaintiff.

R. H. McCarter, for defendant.

MAGIE, J. This action is founded on an obligation issued under an act of the legislature authorizing the townships of certain counties to issue bonds for the benefit of a railroad company, which act was considered by this court in the case of Morrison v. Bernards, 36 N. J. Law, 219. It was there settled that in suits on such obligations the legal power of the commissioners who issued them must appear in the declaration. The demurrant in this case insists that the counts demurred to are faulty, because they do not show authority for the issue of the bond and coupons declared on. The causes of demurrer specified on notice include one which was passed in Morrison v. Bernards, and then held fatal to the declaration. Since, however, the other causes relate to matters of importance, if the suit should be proceeded with, it has been thought best to express an opinion on all of them.

It is first insisted that the declaration does not show that the commissioners, who by the act are authorized to issue bonds, were appointed in the prescribed manner. All that is averred on the subject is that the bond was signed, etc., by two commissioners "appointed for that purpose." By whom or how they were appointed does not appear. But the act gives authority only to commissioners appointed by the circuit court of the county. The power to appoint is one not ordinarily exercisable by that court. It is to be exercised only on a specified application. On the principle settled in Morrison v. Bernards it is plain that the declaration is in this respect defective, and that it ought to show that the commissioners were in fact appointed in the manner required by the act.

It is next urged that the declaration fails to show the authority of the commissioners in another respect. The act provides that, before the commissioners can discharge any duty under the act, they shall give bond to the township whose obligations they are to issue, with security to be approved by the township committee, or the judge of the circuit court. The bonds are to be filed with the township clerk. The giving of such security and its due approval are evidently conditions, without the performance of which the commissioners acquired no power to do aught to bind the township, and the declaration should aver that such acts were done as were essential to endow them with power to issue the obligations in question.

It is further argued that the declaration does not aver that the two commissioners mentioned were a majority of the commissioners of that township. The act authorizes a majority of the commissioners to exercise the powers conferred thereby. It expressly provides that the commissioners appointed shall not exceed three. The averment that two commissioners acted is therefore sufficient. An averment that two constitute a majority of three would be superfluous.

It is next insisted that the declaration does not show that the whole issue of bonds, of which the bond declared on was one, did not exceed in the aggregate the amount the commissioners were authorized to issue. The act fixed a limit to the amount of bonds to be issued. They were not to exceed 10 per cent. of the valuation of the real estate and landed property of the township, to be ascertained by the assessment rolls thereof for the year 1867. The contention under this reason is that every bond issued in excess of the limit would be void, and therefore it should appear that the bond in question is within the limit. Whether a bond issued in excess of the limit would be void or not depends on the authority conferred by the act on the officers who were to issue the bonds.

In the case of Mutual Ben. Life Ins. Co. v. Elizabeth, 42 N. J. Law, 235, the question involved was discussed and settled. The learned chief justice in his opinion says: "The question will ever be, was it the intention of the law-maker, in the particular case, to endow the officer executing the bonds, or some other functionary, with the power to adjudge that the condition precedent...