Franklin Tp v. Crane

• Decision Date: 20 November 1912
• Citation: 80 N.J.Eq. 509,85 A. 408
• Parties: FRANKLIN TP v. CRANE.
• Court: New Jersey Supreme Court

85 A. 408

80 N.J.Eq. 509

FRANKLIN TP

v. CRANE.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1912.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by the Township of Franklin, in the County of Gloucester, against Mathias F. Crane. From an order overruling defendant's demurrer, he appeals. Reversed.

Austin H. Swackhamer, of Woodbury, for appellant.

Harvey F. Carr, of Camden, for respondent.

VREDENBURGH, J. The bill of complaint in this cause is filed by the township of Franklin, N. J., against its former tax collector to obtain a decree for money charged to have been collected and received by him by virtue of his office during the years 1893, 1894, 1895, 1896, 1897, 1898, 1899, 1900, 1901, 1902, 1903, 1904, 1905, and 1906, aggregating the sum of $153,413.64. It charges that after this tax money was so received the defendant made many disbursements thereof without proper or lawful warrant or authority and to divers persons unknown to the complainant. The prayer of the bill is that the defendant discover to what persons, and for what purposes, and upon what warrant and authority he paid out and disbursed the funds of the complainant from time to time, and that he may discover all vouchers or warrants for the payment of funds; that he may account to complainant for the moneys by him received and disbursed, and may be decreed to pay over and refund to complainant all moneys paid out and disbursed by him for the payment and disbursements of which there was no lawful or proper warrant or authority. The bill does not charge that a fiduciary relation of any sort existed between the complainant and defendant with regard to any of the matters set up in the bill respecting the tax moneys sought to be recovered in this suit, nor that such moneys were received or disbursed by the defendant as a trustee for complainant, nor under any relation partaking of the character of either a public or private trust.

Demurrer to the bill was filed by defendant setting up, among the causes of demurrer, that the complainant had not by its bill stated such a case as entitled it in a court of equity to any discovery from defendant, or any relief against him as to the matters contained in the bill; that the facts stated in the bill did not bring the cause under any head of equity jurisdiction, and that the complainant had an adequate remedy at law. The demurrer was overruled by the learned Vice Chancellor in an opinion advising an order to that effect. In it he said that the defendant was an officer of the complainant municipality intrusted with duties of a fiduciary nature—that the relation between such an officer and the municipality is essentially the relation of trustee and cestui que trust, and that this relation affords ground for equity jurisdiction.

We think this conclusion of the Vice Chancellor is based upon an unsound premise, and that the relation of the defendant toward the township in respect to tax moneys collected by him in the performance of his official duties, is not of such a fiduciary nature as to be the subject of equity jurisdiction, but is that rather of a debtor toward his creditor. The Vice Chancellor in his opinion says that few cases of bills in equity against such public officers for an accounting are to be found, but that in the case decided in this court of the Borough of Rutherford v. Alyea, 54 N. J. Eq. 411, 34 Atl. 1078, no suggestion was made of want of jurisdiction of the court to require an accounting from an officer of a municipal eorporation and that he was unable to distinguish that case from the present. The silence of the opinion of this court upon the point of jurisdiction in that case cannot I think be regarded as having the significance or effect attributed to it above. The preliminary and controlling question in that case was the manifestly multifarious character of the bill as framed, and this court met that question at the very threshold, and, deciding that it was clearly multifarious, ordered (of its own motion) the dismissal of the bill. It is true that this court in so deciding also found other reasons why the bill should not be entertained, holding inter alia that a bill for an account would not be retained when it shows on its face the complainant is informed of all the items of the account, and no relief is prayed with reference to the balance. It was nowhere intimated in the opinion that the nature of the relation of the defendant-collector with the township was fiduciary, but, quite to the contrary, the court evidently regarded such relation as only that of a debtor to his creditor, the distinguished author of the opinion remarking (on page 413 of 54 N. J. Eq., on page 1079 of 34 Atl.) that "an ordinary action for money had and received would seem to afford the complainant an ample remedy." An examination of the reports of that case, both in the Court of Chancery (53 N. J. Eq. 580, 32 Atl. 70) and in this court (54 N. J. Eq. 411, 34 Atl. 1078) will make it apparent that this jurisdictional question was neither presented nor argued by counsel, and presumably for that reason the opinion of the courts do not advert to such a question.

The trusts which equity administers and enforces are mainly private trusts arising from contracts express or implied in law, exhibited generally in writings, or verbal only, except so far as forbidden by the statute of frauds. 1 Pom. Eq. Juris. § 152; 2 Id. 987. A public office does not rest upon contract, but on duty, and the appropriate forum for the enforcement of official duties is primarily a court of law—by mandamus if the duty be clear, and the amount involved is not fairly disputable (State ex rel. Meinzer v. Disbrow, 42 N. J. Law, 141), or by action at law upon the common counts if the amount claimed is not certain or fixed. All the tax money the defendant has paid out without authority of law he still holds in legal contemplation to the use of the township, and for that he is liable to respond in an action at law for money had and received. He cannot successfully defend that he has paid the moneys of the township to others than those lawfully entitled to them. Manifestly he had no more right to disburse the tax funds without the authority of the township, or to persons not legally entitled to them, than to throw the money into the sea. The defendant held toward the township no trust relation of any kind with respect to tax moneys collected by him. As to...