Hazard v. Bd. of Educ. of Sch. Dist. of Borough of Swedesboro

• Decision Date: 15 January 1910
• Citation: 75 A. 237
• Parties: HAZARD et al. v. BOARD OF EDUCATION OF SCHOOL DIST. OF BOROUGH OF SWEDESBORO et al.
• Court: New Jersey Court of Chancery

75 A. 237

HAZARD et al.

v. BOARD OF EDUCATION OF SCHOOL DIST. OF BOROUGH OF SWEDESBORO et al.

Court of Chancery of New Jersey.

Jan. 15, 1910.

Action between Horace C. Hazard and another, consolidated for the purpose of enforcing municipal liens against the Board of Education of the.School District of the Borough of Swedesboro and others.Distribution decreed.

Martin W. Lane, for Hazard & Co.Joseph J. Summerlll, for James J. Davidson and Louis Dietrich.David O. Watkins, for Joseph D. Horner.French & Richards, for Thomas Partridge Ward.Charles V. D. Joline, for Charles Warner Company.Austin H. Swackhamer, for Louis P. Mayer.Lewis Starr, for Board of Education of Swedesboro.

LEAMING, V. C.The present controversy relates to sufficiency of several claims of lien which have been asserted under the provisions of the municipal lien act (2 Gen. St.1895, p. 2078).

As certain objections are made to the claim of Horace C. Hazard & Co. which are not applicable to other claims, these objections will be first considered.

At the time the notices of claim of lien were filed by Hazard & Co., the lumber referred to in the notices had been supplied to the contractor, but only a portion of the lumber so supplied had been actually used in the building.The portion so used has not been ascertained.The second section of the lien statute requires the notices to specify "that the labor was performed or materials furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city," etc.It seems clear that under this legislative requirement no lien can be claimed for material which has been, at the date of the notices of the lien, supplied to the contractor, and which has not been, at that time, used in the building.This view has been adopted by this court, in National Fire Proofing Company v. Daly, 74 Atl. 152, 155.In the absence of evidence of the amount of lumber supplied by Hazard & Co. which had been used in the building at the time the notices of claim of lien were filed, I am unable to discern how the notices can be made effective under the provisions of the act.It appears that the remaining portion of the lumber was subsequently used in the building by the second contractor, but no notices of claim of lien have been filed based upon that fact.

Another objection to the claim of Hazard & Co.Is, I think, fatal.The first section of the act confers a lien only when the requirements of the second section of the act are complied with.The requirements of the second section of the act are that two notices of claim of lien shall be filed, one with the chairman of the board having charge of the work, and the other with the "financial officer" of the municipality.The language of the act is entirely clear in this respect.The defendant municipality is a school district, and the board which had charge of the work was the board of education of that school district.The notice of claim of lien of Hazard & Co. which was intended for the financial officer of the school district was filed with the treasurer of the borough of Swedesboro.It seems impossible to regard that officer as the financial officer of the school district which made the contract for the erection of the building in question.The school district is an independent municipal organization, with its own officers, and includes within its boundaries the borough of Swedesboro and the township of Swedesboro.The treasurer of the borough of Swedesboro and the corresponding officer of the township of Swedesboro have no connection whatever with the school district or its affairs, except to turn over to it certain taxes which are collected within the borough and township, respectively, for the school district.It seems impossible, therefore, to regard either the treasurer of the borough or the collector or treasurer of the township as financial officers of the school district even in a limited sense.While they have financial duties to perform which inure to the benefit of the school district, they are not, in fact, officers of the district.The lien statute must also be deemed to have had a rational purpose, and it seems quite impossible to conceive a legislative contemplation of benefits to flow to a school district from a notice of claim of lien filed with a borough or township treasurer.I am obliged to conclude that the treasurer of the borough of Swedesboro, with whom one of the statutory notices of claim of lien of Hazard & Co. was filed, cannot be properly regarded as a financial officer of the school district of Swedesboro within the meaning of the act in question.

As to the remaining claims, but two classes of objections have been raised.As to some of the claims, it is urged that the notices of claim of lien have not been filed with the financial officer of the school district; as to other claims, it is urged that no notice of the pendency of an action for their enforcement has been filed pursuant to the requirements of the fourth section of the act.

Some of the claimants have filed their notices of claim of lien with the district clerk of the school district as its financial officer, while others have filed with the custodian of school moneys as the financial officer of the district All claimants have filed duplicate notices with the chairman of the board of education.It is therefore necessary to ascertain who is the financial officer of a school district within the meaning of the act.

In Hall v. Jersey City, 62 N.J.Eq. 489, 495, 50 Atl. 603, 606, this court held that a notice filed with the comptroller of the city of Jersey City sufficiently complied with the requirement of the act that the notice should be filed with the "financial officer."The view was there taken that the duties of the comptroller of that city were such that he was, "'par excellence,' the financial officer of the city."An examination of the school law, passed at the special session of the LegislatureOctober 13, 1903, and its amendments, will disclose that no officer exists in school districts with duties similar to those of the comptroller of Jersey City.Each school district is required to elect a board of education, and that board elects from its members a president, vice president, and district clerk.Acts 1903(Sp. Sess.)c. 1, § 85.Each school district is also required to have a custodian of school moneys, who receives and pays out all moneys of the district.Acts 1903, § 184.The custodian of. school moneys may be the same person who is treasurer of the municipality in which the district is situate, or the board of education may designate the collector of such municipality as the custodian, and where, as here, the school district contains more than one municipality, the board of education may appoint any suitable person as custodian.P. L. 1904, p. 341.All bills are passed upon in the first and final instance by the board of education, and, if allowed, orders or warrants for their payment are drawn on the custodian by the district clerk, and countersigned by the president of the board.An examination of the detailed statutory duties of the custodian and district clerk will disclose that neither can be said to be the financial officer of a school district in the broad or comprehensive sense in which that term is applied to a minister of finance in continental Europe or to the Chancellor of the Exchequer in England or to the Secretary of the Treasury in the United States or to the comptroller in many of our cities; but both the custodian and district clerk may be appropriately said to be financial officers in the narrower or more restricted sense that they have some financial duties to perform.In a popular sense the custodian would undoubtedly be regarded as the financial officer, as he is the officer who is intrusted with the finances of the district, and I entertain no doubt that a notice filed with him as the financial officer meets the requirements of the act; but I am also convinced that he is not so distinctively or exclusively the financial officer of the district as to justify the conclusions that a notice filed with the district clerk fails to comply with the spirit of the act.The district clerk has duties to perform which are, in their nature, essentially financial duties.The duty is imposed upon him to "pay out by orders drawn on the custodian of the school moneys * * * all school moneys of the district."He is required to keep a detailed account of all the expenditures, and to report to each regular meeting of the board the amount for which warrants have been drawn since his preceding report, and to disclose in such reports the several accounts against which the warrants have been drawn and the balance to the credit of each account.At the annual meeting of the school district he is required to make a statement of the financial condition of the district, and a copy of such statement is...