Inhabitants of Twp. of Bernards, Somerset County v. Allen

• Decision Date: 28 February 1898
• Citation: 61 N.J.L. 228,39 A. 716
• Parties: INHABITANTS OF TOWNSHIP OF BERNARDS, SOMERSET COUNTY, et al. v. ALLEN et al. SAME v. POST et al.
• Court: New Jersey Supreme Court

39 A. 716

61 N.J.L. 228

INHABITANTS OF TOWNSHIP OF BERNARDS, SOMERSET COUNTY, et al.

v. ALLEN et al.

SAME

v. POST et al.

Court of Errors and Appeals of New Jersey.

Feb. 28, 1898.

Error to supreme court.

Certiorari by Anna Skinkle Allen, George B. Post, and others to review a tax levy made by the inhabitants of the township of Bernards, Somerset county. From judgments rescinding a part of the levy (31 Atl. 219), the township brings error. Reversed in part.

R. V. Lindabury, for plaintiffs in error.

Francis E. Marsh and Frank B. Allen, for defendants in error.

DEPUE, J. The township of Bernards was incorporated as one of the townships of this state, with all the rights, privileges, powers, etc., given and granted by the general township act of 1846 and the supplements thereto. By section 4 of that act the freeholders and inhabitants who are qualified to vote at town meetings were given full power, and were directed and required to assemble and hold town meetings in their respective townships at the places designated in the act. By section 8 the persons qualified to vote at town meetings were authorized to make and ordain such regulations and bylaws as the majority of them so assembled should from time to time judge necessary and proper for certain local purposes. Section 11 enacted: "That the persons qualified to vote at town meetings shall be and they are hereby empowered at their annual meetings, or at any other meeting duly held for the purpose, to vote, grant, and raise such sum or sums of money for the maintenance and support of the poor, the building and repairing of pounds, the opening making, working and repairing of roads and keeping them in order, in such townships as are authorized to repair their highways by hire, the destruction of noxious wild animals and birds, for running and ascertaining the lines, and prosecuting or defending the common rights of such township, and for other necessary charges and legal objects and purposes thereof, as are or shall be by law expressly vested in the inhabitants of the several townships of this state, by this or some other act of the legislature, which money so voted and granted shall be assessed, levied and collected by the same persons, in the same manner, and under the like fees, fines and penalties as the money raised in such township Dy the board of chosen freeholders of the county shall be assessed, levied and collected, and at such times and in such proportions as the said town meetings, respectively, shall direct and appoint; provided, that the said fines and penalties shall when recovered be paid to the clerk of the said township, and be applied to the use of the said township, in such manner as shall from time to time be directed and appointed at their annual meeting." 3 Gen. St. p. 3579.

At the annual town meeting of the inhabitants of Bernards township held pursuant to law March 4, 1893, the sum of $1,200 was, by a vote of the qualified voters, ordered to be raised for the support of the poor, $4,000 for roads, and $500 for removing snow. On application to the governor, pursuant to the provisions of an act passed March 20, 1884, entitled "An act to provide for and secure the raising of revenue for the execution of the public duties of maintaining public schools, preventing the destruction of property by fire, preserving the public health, supporting the poor, maintaining police and keeping the highways and streets in a safe condition for public use within the limits of incorporated cities, towns and municipalities in eases where the local or municipal authorities or officers fail to provide for the performance of such duties" (3 Gen. St. p. 3411), the governor appointed three persons, freeholders and residents of the township, as commissioners of taxation for the said township. The commissioners, in pursuance of the authority conferred upon them in virtue of the said appointment, made a new levy of taxes under the provisions of the said act, and resolved to levy on the taxable property in the township $2,000 for the protection and maintenance of public health, $2,300 for the maintenance and support of the poor, $324 for the support and maintenance of a police force, $14,000 for keeping the highways and streets in a safe condition for public use, and $1,700 for the expense of assessing and collecting such taxes and to meet deficiencies, making in all the sum of $21,124 in lieu of the sum of $5,700, the aggregate amount of appropriations voted at the town meeting, and fixed a percentage of $1 per $1,000 upon the valuation of taxable property as the rate of taxation. On the hearing of the certiorari, the supreme court exscinded so much of the levy of the commissioners as exceeded the amounts appropriated by the town meeting for supporting the poor and for keeping highways in a safe condition, on the ground that the town meeting had performed its duty in relation to the poor and roads of the township, and consequently the commissioners, under the statute referred to, had no power to levy taxes for those purposes. The court also excluded the levy of the commissioners for the support of a police force, for the reason that no police force had been established in the township. The court allowed the levy of the commissioners for the protection of public health to stand, on the ground that it was the duty of the voters of the township at the town meeting to provide for raising funds for these purposes. The levy of the commissioners to meet the expense of assessing and collecting the taxes imposed by them, and to meet deficiencies, was reduced to the sum of $200. The writ of certiorari was sued out by certain taxpayers of the township, and the township authorities, being dissatisfied with the judgment of the supreme court, prosecuted this writ of error. The claim of the plaintiffs in error is that the judgment of the supreme court was erroneous, in that the taxes levied by the commissioners were in all respects within the powers conferred on the commissioners by the act. On the argument of the writ of error, this court, of its own motion, directed that the case should be reargued on the constitutionality of the act of 1884, and the case was accordingly reargued on constitutional grounds. The material parts of this act will be stated presently. A preliminary consideration of the source of the power of taxation, and the principles by which power of taxation is controlled, will be serviceable.

Under the Norman kings of England, the right to tax to obtain money for public uses was vested in the king, and was exercised by him at his own will. The money directed by him to be raised was assessed on persons or property by the officers of the exchequer, collected by the sheriff, and paid into the exchequer. The expenses of foreign wars increased the burden of taxation upon the English people, and, taxes becoming so onerous, there was resistance, and, by force, the power of taxation was renounced by the crown, and conceded to the people. This result was accomplished by several charters granted by the crown. Not the earliest, but the most conspicuous, of the early concessions in this respect, was the Great Charter granted by King John. By this charter and others that followed it the renunciation of the right of taxation was given to, and the right of taxation conferred upon, the people. In the charter of the ninth year of Henry III. the grant in the first chapter is expressed in these terms: "We have granted also and given to all the freemen of our realm, for us and our heirs forever, these liberties underwritten, to have and to hold, to them and their heirs forever." By the confirmation of the Charter of Liberties of Englishmen, granted by 25 Edw. I., which, as was said by Sir Edward Coke, "is but an explanation of this branch of Magna Charta" (2 Co. Inst. 59), it was granted as well to the archhishops, etc., and also to the earls, etc., and "to all the communality of the land, that for no business henceforth we shall take such manner aids, talks nor prizes but by the common assent of the realm." By a later grant, contained in the Statute de Tallagio non Concedendo, passed in the thirty-fourth year of Edward I., it was expressly granted that "no tallage or aid shall be taken or levied by us or our heirs in our realm without the good will and assent of archhishops, hishops, earls, knights, burgesses and other freemen of the land." Sir Edward Coke, in his comment upon this statute, says "that the word 'tallagium' is a general word, and doth include all subsidies, taxes, tenths, fifteenths, impositions, and other burdens or charge put or set upon any man." 2 Co. Inst. 533. By the charter in the twenty-eighth year of Edward I., which was a confirmation of previous charters, it is recited that "forasmuch as the articles of the Great Charter of Liberties and of the Charter of the Forest, the which King Henry, father of our king that now is, granted to his people for the weal of the realm, have not been heretofore observed and kept because there was no punishment executed upon them, which offended against the points of the charters before mentioned, our lord, the king, hath again granted, renewed and confirmed them at the request of his prelates, earls," etc., "assembled in parliament," etc., "and hath ordained and enacted and established certain articles, against all them that offend contrary to the points of the said charters or any part of them or that in anywise transgress them in the form that ensueth; that is to say, that from henceforth the Great Charter of the Liberties of Englishmen, granted to all the communality of the realm," etc., "shall be observed, kept and maintained in every point," etc. Sir Edward Coke's comment on this charter is that "here 'commune' is taken for 'people,' so as 'tout le commune' is taken here for 'all the people'; and this is proved by the sense of the words, for Magna Charta was not granted to the commons of the realm, but...