Kinsev 0. J;
delivered the opinion of the court. In this case, two questions occur for our consideration. — 1. Whether the tax imposed by the town meeting, at the meeting on the 2d of February, 1793, was authorized by the charter of incorporation ?
2. Whether, supposing the tax to have been legally voted and assessed, the warrant of distress and sale, under which the alleged trespass was committed, was a lawful process, or affords a sufficient and legal justification of the officer?
We are of .opinion, on the first point, that the tax in question was not laid pursuant to the charter; and this opinion is founded on several grounds.
1. The professed object of the tax was to purchase of the board of justices and freeholders an interest in the court house of the county of Middlesex, for the purpose of accommodating the corporation with public buildings. It is certain that the board could make no such contract with the corporation; the consideration, therefore, or the object of the tax, was void. The money thus raised, and thus appropriated, was not applied to the exigencies of the city; it was raised for a purpose which had no legal existence, and appropriated as a mere gift to the county. The effect, therefore, was to compel the inhabitants of the corporation residing on the Somerset side of the city, who had to build and maintain a court house of their own, to assist in defraying the expenses of the public buildings of another county. In this point of view, we consider the tax as illegally imposed, and as not authorized by the charter.
2. We look upon this vote or proceeding as void upon another ground. The meeting of the 2d of February was avowedly called by the common council, not for the general purposes of laying taxes, or supplying the deficiencies in the preceding annual appropriation, but for the special purpose of considering the propriety of raising money, “ in order to become proprietors in the bridge to be erected over the Raritan river.” This is the only object of the resolution [443]*443passed by the common council on the 25th of January, 1793, for calling the town meeting, and it was the only object to which the attention of the citizens was directed in the advertisement by which they were called together. At the meeting held in consequence of this resolution and advertisement, the persons present take no notice of the matter which had been publicly announced, as the one that was to come under consideration, or of the resolution and proposition made by the common council; but they introduce a subject altogether foreign to the avowed purpose, and pass a vote for raising £300, to “ build a court house and gaol, in the city, for the use of the county of Middlesex,” on condition, however, that the freeholders should assure the benefit of these buildings to the citizens.
We are of opinion that this vote, being wholly beside the special purpose of the meeting, as stated in the resolution of the council and the public notice, was void.
[444]*444For these reasons alone, without entering into the particular circumstances, which in this case furnish strong suspicions of intentional and premeditated deception in this double faced transaction, we are of opinion, that the vote of the second of February, 1793, imposing a tax of £300 upon the citizens of New Brunswick, for the purposes set forth, was illegal and void; and of consequence, that the assessment of it; the ordinance directing the time of its payment; the duplicates, and warrant of distress, having no valid foundation, are all likewise void. (See Head v. Providence Ins. Co., 2 Cranch. 127.)
2. Being of this opinion upon the first point of the case, as to the illegality of the tax itself, it might be unnecessary to consider the propriety of a warrant, of distress and sale, which was the second question proposed. In a matter, however, of so much moment, we conceive it our duty to pave the way, at least, for a final settlement of this law, in order to prevent the expense and trouble which must be incurred in obtaining a decision upon it in another case.
If the tax in question had been legally imposed, we are clearly of opinion, that, by the terms and spirit of the charter, the corporation are not authorized to collect it by a warrant of distress and sale, upon the return and oath of the collector, that the person assessed is a delinquent.
When a tax is assessed, if it has been done in a legal manner, the quota apportioned upon each individual becomes a debt, and, if not paid, must be recovered by the corporation in due course of law; unless where the charter authorizes proceedings of a more summary kind; or unless a corporation is empowered by the common law to enact a by-law prescribing the mode in which their debts may be collected.
With regard to the charter by which the city of New ' Brunswick holds its corporate existence, it gives no such power, as is contended for, in general cases. It expressly authorizes a warrant of distress and sale in the case of fines [445]*445and amercements, which being particularly specified, would seem, if any such argument was necessary, to exclude this mode of proceeding in all other cases.
By the common law, we consider it as clear, that corporations cannot make a by-law to enforce the payment of taxes, fines, amercements or forfeitures, by warrant to dis-train and sell the goods of the party who may have omitted to discharge his legal dues. The case of Clerk v. Tucker is in point, and, as we conceive, states the correct doctrine upon this question. The distinction which it has been attempted to take between a fine or amercement and a tax, is groundless and novel; if the goods of one actually convicted of an offence, under a special by-law, and fined, cannot be levied by distress and sale, the very mode pointed out in such by-law a fortiori, it cannot be done for the mere non-payment of a tax, and that delinquency established by the ex-parte relation and oath of the collector.
It is no answer to this to say, that this is the mode in which the state taxes are collected; because there is an express law authorizing and directing it, and, there can be no question as to the authority of the legislature to enact such a law. Prom the powers which are vested in the supreme legislative body of the county, no inference can be drawn to pi’ove the powers of inferior corporations. A body of this kind can make no law which contravenes the common or statute law of the community, which tends to despoil the citizen of his birth right, unless such power is actually and expressly given them by charter.
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Kinsev 0. J;
delivered the opinion of the court. In this case, two questions occur for our consideration. — 1. Whether the tax imposed by the town meeting, at the meeting on the 2d of February, 1793, was authorized by the charter of incorporation ?
2. Whether, supposing the tax to have been legally voted and assessed, the warrant of distress and sale, under which the alleged trespass was committed, was a lawful process, or affords a sufficient and legal justification of the officer?
We are of .opinion, on the first point, that the tax in question was not laid pursuant to the charter; and this opinion is founded on several grounds.
1. The professed object of the tax was to purchase of the board of justices and freeholders an interest in the court house of the county of Middlesex, for the purpose of accommodating the corporation with public buildings. It is certain that the board could make no such contract with the corporation; the consideration, therefore, or the object of the tax, was void. The money thus raised, and thus appropriated, was not applied to the exigencies of the city; it was raised for a purpose which had no legal existence, and appropriated as a mere gift to the county. The effect, therefore, was to compel the inhabitants of the corporation residing on the Somerset side of the city, who had to build and maintain a court house of their own, to assist in defraying the expenses of the public buildings of another county. In this point of view, we consider the tax as illegally imposed, and as not authorized by the charter.
2. We look upon this vote or proceeding as void upon another ground. The meeting of the 2d of February was avowedly called by the common council, not for the general purposes of laying taxes, or supplying the deficiencies in the preceding annual appropriation, but for the special purpose of considering the propriety of raising money, “ in order to become proprietors in the bridge to be erected over the Raritan river.” This is the only object of the resolution [443]*443passed by the common council on the 25th of January, 1793, for calling the town meeting, and it was the only object to which the attention of the citizens was directed in the advertisement by which they were called together. At the meeting held in consequence of this resolution and advertisement, the persons present take no notice of the matter which had been publicly announced, as the one that was to come under consideration, or of the resolution and proposition made by the common council; but they introduce a subject altogether foreign to the avowed purpose, and pass a vote for raising £300, to “ build a court house and gaol, in the city, for the use of the county of Middlesex,” on condition, however, that the freeholders should assure the benefit of these buildings to the citizens.
We are of opinion that this vote, being wholly beside the special purpose of the meeting, as stated in the resolution of the council and the public notice, was void.
[444]*444For these reasons alone, without entering into the particular circumstances, which in this case furnish strong suspicions of intentional and premeditated deception in this double faced transaction, we are of opinion, that the vote of the second of February, 1793, imposing a tax of £300 upon the citizens of New Brunswick, for the purposes set forth, was illegal and void; and of consequence, that the assessment of it; the ordinance directing the time of its payment; the duplicates, and warrant of distress, having no valid foundation, are all likewise void. (See Head v. Providence Ins. Co., 2 Cranch. 127.)
2. Being of this opinion upon the first point of the case, as to the illegality of the tax itself, it might be unnecessary to consider the propriety of a warrant, of distress and sale, which was the second question proposed. In a matter, however, of so much moment, we conceive it our duty to pave the way, at least, for a final settlement of this law, in order to prevent the expense and trouble which must be incurred in obtaining a decision upon it in another case.
If the tax in question had been legally imposed, we are clearly of opinion, that, by the terms and spirit of the charter, the corporation are not authorized to collect it by a warrant of distress and sale, upon the return and oath of the collector, that the person assessed is a delinquent.
When a tax is assessed, if it has been done in a legal manner, the quota apportioned upon each individual becomes a debt, and, if not paid, must be recovered by the corporation in due course of law; unless where the charter authorizes proceedings of a more summary kind; or unless a corporation is empowered by the common law to enact a by-law prescribing the mode in which their debts may be collected.
With regard to the charter by which the city of New ' Brunswick holds its corporate existence, it gives no such power, as is contended for, in general cases. It expressly authorizes a warrant of distress and sale in the case of fines [445]*445and amercements, which being particularly specified, would seem, if any such argument was necessary, to exclude this mode of proceeding in all other cases.
By the common law, we consider it as clear, that corporations cannot make a by-law to enforce the payment of taxes, fines, amercements or forfeitures, by warrant to dis-train and sell the goods of the party who may have omitted to discharge his legal dues. The case of Clerk v. Tucker is in point, and, as we conceive, states the correct doctrine upon this question. The distinction which it has been attempted to take between a fine or amercement and a tax, is groundless and novel; if the goods of one actually convicted of an offence, under a special by-law, and fined, cannot be levied by distress and sale, the very mode pointed out in such by-law a fortiori, it cannot be done for the mere non-payment of a tax, and that delinquency established by the ex-parte relation and oath of the collector.
It is no answer to this to say, that this is the mode in which the state taxes are collected; because there is an express law authorizing and directing it, and, there can be no question as to the authority of the legislature to enact such a law. Prom the powers which are vested in the supreme legislative body of the county, no inference can be drawn to pi’ove the powers of inferior corporations. A body of this kind can make no law which contravenes the common or statute law of the community, which tends to despoil the citizen of his birth right, unless such power is actually and expressly given them by charter. The act of incorporation does not, in the present case, vest such an authority; on the contrary, it expressly provides, in the sixth section, that their ordinances “shall not be repugnant to tli-' law;- of New Jersey.”
Upon the whole, we are of opinion — 1. That there has been no legal vote for raising this money, and that the whole proceeding was an act of usurpation, and void.
[446]*4462. That the process issued by the director was void, and no justification to the officer ; he must be .answerable to the party injured, and look for indemnity to those under whose usurped authority he has acted. ' f
Let the judgment be affirmed.
This principle is laid down in 2 Bac. Mr. 18; but tile cases of Musgrave v. Nevinson, 1 Str. 583, 2 Lord Ray, 1358, and King v. Strangeways, cited by Lord Hardwicke, Ca. temp, Hardw. 142, in the case of King v. Mayor, &c. of Shrewsbury, do not come quite up to the doctrine. The cases at the King, Mayor, &c. of Carlisle, 1 Str. 385; Machell v. Nevinson, 2 Lord Ray, 1355; Justice Wilmot’s opinion in Rex v. Liverpool, 2 Bur. 735, and Rex v. Mayor, &c. of Doncaster, Ib. 735, approach much nearer to it. See also 11 East 84.