The charge of the Chief Justice was as follows :
This is a case involving questions of much public importance. The plaintiff’s action is brought to recover of the township the sum of $102, which he alleges he has expended upon the highway in road district No. 47, over which he was elected overseer, in the spring of 1860, by the inhabitants at their annual town meeting. This sum he claims by reason of a contract, alleged to have been made with him by the town committee in the spring of that year, and after he was elected overseer. He alleges that the committee directed him to go -on and work out the same taxes on the road, as had been -been worked oat on it the previous year. The common law -casts upon the township the burthen of making and repairing its public highways, as it does upon the county that of making and repairing bridges. But the township is not liable civilly for a neglect of the duty to anybody sustaining especial injury thereby, nor is a county, in like case, for injury arising from .non-repair of bridges.
The duties are owing to the public, not individuals, and their performance is enforced by indictment, not suit by individuals.
The town committees have uo common law power to bind the townships. Whatever powers they possess are derived from statutes. This case, like the one just tried, shows the importance of protecting the people against their own servants, ■by confining them within the strict limits of the powers conferred by law.
The modes in which roads are to be made and repaired are very carefully defined by the act on that subject. The townships may do it either by hire or labor, and they may vote on this subject once in three years, and cannot change the mode .adopted in the meantime.
When the roads are maintained by labor, no specific tax [162]*162is assessed for the purpose, and the town committee is to assign* the inhabitants of the township to the districts in equitable-proportions, having regard to the circumstances of the inhabitants and the quality of the highways ; and the labor of the inhabitants is to be apportioned by the overseer in proportion, to the other taxes.
The other mode is by hire. The townships are authorized by statute to raise money by tax for repairing roads, to be voted at their annual town meetings, Nix. Dig. 706, § 22 ;
The 23d section of the act requires the overseers to account for the expenditure of the money they shall receive to the-town committee or the town meeting, and to pay the overplus to their successors in office. If the township is fined on indictment for non-repair, the overseer shall refund the fine. This is to be done, of course, from the money advanced to-him, and not properly expended; or if none was furnished, then for neglect to call out the inhabitants he is to pay the-money.
The 42d section of the act requires the overseer, if the township neglects or refuses to raise and furnish to the overseer sufficient money, to maintain the highways in the mode prescribed for doing it by labor.
These sections and the whole act show clearly that the roads are to be worked on the cash, not the credit system, and give to the township officers no power to contract for the repair of the highways, on the credit of the township. If that were the-case, there would be no limit to the amount of moneys the-town committee might authorize expended on the highways.
If they may do it on credit, it is equivalent to permitting them to borrow money to an unlimited extent.
If a person elects to work out his tax, the overseer will have so much more money to turn over to his successor in office.
[163]*163The act giyes the overseer no action against the township for neglecting to raise and furnish the necessary money; in that case his duty is plain, to work the roads by labor in the mode prescribed and already stated.
Any contract which the committee may make with the overseer, to pay him a certain sum of money for his district, does not bind the township, and no action can be maintained on it against the township.
If the committee, out of money in hand, appropriate to an overseer a certain sum, and the treasurer refuses to pay it, the remedy against him or the committee to compel its payment is by mandamus to the treasurer or the committee; because that is their default, not that of the township. The act never intended the township should be held liable civilly for the default of the committee; if it were so, then every overseer who was dissatisfied with the action of the committee, might harass the township with suits, and expose them to the payment of unnecessary costs and expenses.
In this case the plaintiff has given no evidence to the jury, of a contract made by the committee with the plaintiff, if it had the right to make one to bind the township. The conversation between him and the chairman did not amount to a contract or appropriation. It was not the act of the committee. No vote was taken upon it. A resolution to that effect has not been shown by the minutes or by parol.
The act of the assessor in filling out his list of names with the road faxes did not bind the township.
Nor did the fact, that the taxes of residents in his district amounted to a certain sum, give him any right to sue the township for that sum, or any part of it. They belonged to the township, not to him.
The apportionment to the overseer the previous year did not affect the question, or give him a right to an equal sum for the next year.
Each committee acts for the current year as well as each overseer. A new appropriation is to be made every year.
The section on the subject of setting off road districts only [164]*164provides a mode of determining what road each overseer shall Avork, and defines the limits of his district. They are to remain until changed. It does not relate to the apportionment of the money to be expended on that district.
It is clear, from Avhat I have said, and the provisions of the act, that the law contemplates no other modes of Avorking the highways than by money furnished to the overseer, or by labor under the direction of the overseer, properly apportioned among the inhabitants. There is no intermediate mode of doing it on the credit of the township; all idea of that kind is carefully excluded by the particular provisions of the act.
That section Avhich requires them to be Avorked on the labor plan, when no money is furnished, settles the question against the right to contract with the overseer.
If, hoAAever, the committee, in advance of the assessment and collection of the tax voted, apportion a particular sum to a given district, and the overseer chooses to Avaive his legal right to the payment of the money in advance before he begins Avork, and to advance the money, he may do so; and Avhen the taxes are collected and received by the committee or their treasurer, he can call upon the committee to make payment of the appropriation, and if they refuse to do so, he may have his remedy by mandamus against the committee or its treasurer. They are the defaulters, and they must respond to the injured party.
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The charge of the Chief Justice was as follows :
This is a case involving questions of much public importance. The plaintiff’s action is brought to recover of the township the sum of $102, which he alleges he has expended upon the highway in road district No. 47, over which he was elected overseer, in the spring of 1860, by the inhabitants at their annual town meeting. This sum he claims by reason of a contract, alleged to have been made with him by the town committee in the spring of that year, and after he was elected overseer. He alleges that the committee directed him to go -on and work out the same taxes on the road, as had been -been worked oat on it the previous year. The common law -casts upon the township the burthen of making and repairing its public highways, as it does upon the county that of making and repairing bridges. But the township is not liable civilly for a neglect of the duty to anybody sustaining especial injury thereby, nor is a county, in like case, for injury arising from .non-repair of bridges.
The duties are owing to the public, not individuals, and their performance is enforced by indictment, not suit by individuals.
The town committees have uo common law power to bind the townships. Whatever powers they possess are derived from statutes. This case, like the one just tried, shows the importance of protecting the people against their own servants, ■by confining them within the strict limits of the powers conferred by law.
The modes in which roads are to be made and repaired are very carefully defined by the act on that subject. The townships may do it either by hire or labor, and they may vote on this subject once in three years, and cannot change the mode .adopted in the meantime.
When the roads are maintained by labor, no specific tax [162]*162is assessed for the purpose, and the town committee is to assign* the inhabitants of the township to the districts in equitable-proportions, having regard to the circumstances of the inhabitants and the quality of the highways ; and the labor of the inhabitants is to be apportioned by the overseer in proportion, to the other taxes.
The other mode is by hire. The townships are authorized by statute to raise money by tax for repairing roads, to be voted at their annual town meetings, Nix. Dig. 706, § 22 ;
The 23d section of the act requires the overseers to account for the expenditure of the money they shall receive to the-town committee or the town meeting, and to pay the overplus to their successors in office. If the township is fined on indictment for non-repair, the overseer shall refund the fine. This is to be done, of course, from the money advanced to-him, and not properly expended; or if none was furnished, then for neglect to call out the inhabitants he is to pay the-money.
The 42d section of the act requires the overseer, if the township neglects or refuses to raise and furnish to the overseer sufficient money, to maintain the highways in the mode prescribed for doing it by labor.
These sections and the whole act show clearly that the roads are to be worked on the cash, not the credit system, and give to the township officers no power to contract for the repair of the highways, on the credit of the township. If that were the-case, there would be no limit to the amount of moneys the-town committee might authorize expended on the highways.
If they may do it on credit, it is equivalent to permitting them to borrow money to an unlimited extent.
If a person elects to work out his tax, the overseer will have so much more money to turn over to his successor in office.
[163]*163The act giyes the overseer no action against the township for neglecting to raise and furnish the necessary money; in that case his duty is plain, to work the roads by labor in the mode prescribed and already stated.
Any contract which the committee may make with the overseer, to pay him a certain sum of money for his district, does not bind the township, and no action can be maintained on it against the township.
If the committee, out of money in hand, appropriate to an overseer a certain sum, and the treasurer refuses to pay it, the remedy against him or the committee to compel its payment is by mandamus to the treasurer or the committee; because that is their default, not that of the township. The act never intended the township should be held liable civilly for the default of the committee; if it were so, then every overseer who was dissatisfied with the action of the committee, might harass the township with suits, and expose them to the payment of unnecessary costs and expenses.
In this case the plaintiff has given no evidence to the jury, of a contract made by the committee with the plaintiff, if it had the right to make one to bind the township. The conversation between him and the chairman did not amount to a contract or appropriation. It was not the act of the committee. No vote was taken upon it. A resolution to that effect has not been shown by the minutes or by parol.
The act of the assessor in filling out his list of names with the road faxes did not bind the township.
Nor did the fact, that the taxes of residents in his district amounted to a certain sum, give him any right to sue the township for that sum, or any part of it. They belonged to the township, not to him.
The apportionment to the overseer the previous year did not affect the question, or give him a right to an equal sum for the next year.
Each committee acts for the current year as well as each overseer. A new appropriation is to be made every year.
The section on the subject of setting off road districts only [164]*164provides a mode of determining what road each overseer shall Avork, and defines the limits of his district. They are to remain until changed. It does not relate to the apportionment of the money to be expended on that district.
It is clear, from Avhat I have said, and the provisions of the act, that the law contemplates no other modes of Avorking the highways than by money furnished to the overseer, or by labor under the direction of the overseer, properly apportioned among the inhabitants. There is no intermediate mode of doing it on the credit of the township; all idea of that kind is carefully excluded by the particular provisions of the act.
That section Avhich requires them to be Avorked on the labor plan, when no money is furnished, settles the question against the right to contract with the overseer.
If, hoAAever, the committee, in advance of the assessment and collection of the tax voted, apportion a particular sum to a given district, and the overseer chooses to Avaive his legal right to the payment of the money in advance before he begins Avork, and to advance the money, he may do so; and Avhen the taxes are collected and received by the committee or their treasurer, he can call upon the committee to make payment of the appropriation, and if they refuse to do so, he may have his remedy by mandamus against the committee or its treasurer. They are the defaulters, and they must respond to the injured party.
If the toAvnship fail to furnish any money to the overseer, they cannot be sued for the neglect; he must proceed on the labor plan. Surely they cannot be in a Avorse position for the default of their agents than their oavii.
In no aspect of the case is the plaintiff entitled to recover, and your verdict must be for the defendants.
The opinion of the Supreme Court was delivered by
Elmer, J.
The inhabitants of the several toAvnships in this state are corporate bodies and as such capable of suing and of being sued. Formerly corporations could only be bound by a writing under their corporate seal; but in [165]*165modern times the officers and agents representing these bodies, and acting within the sphere of their duties, have power to bind them, and to impose on them contracts and obligations which may bo enforced by actions at law, as in the case of individuals transacting similar business. But whether any particular officers of a corporation have this power, depends on the construction of the statutes prescribing their duties, and this is especially the ease in regard to municipal corporations. It has been held that overseers of the poor may, in certain cases, enter into contracts for which the township is liable. Saddle River v. Colfax, 1 Halst. 115. And the express terms-of the statute seem to render them liable to an action for the damages assessed upon the laying out of a highway. Nix. Dig. 712, § 61*
In the case of Mendham v. Losey, Penn. 347, decided in 1808, it was held, by this court, that an action could not be maintained against a township for money expended by an overseer of the roads, for their necessary repair. There was in that ease, no allegation that the township committee had in any way authorized the expenditure; but the decision was made on the ground that the' overseer was not bound, and therefore not authorized to do more than to expend such money, as he should be furnished with for that purpose. Stress was properly laid upon the provision, still forming a part of the road act, whereby the townships were enjoined to be careful to have money in hand, ready to advance, sufficient for the objects and purposes specified in the acts. At that time it was somewhat doubtful whether the overseer was not liable to punishment for not keeping the road in repair, even in a case where he had no money in hand; and no provision was made whereby he had authority, in those .townships which had elected to maintain their highways by liire, to call out the inhabitants and require them to work, however great the emergency.
The acts concerning roads were revised and re-enacted in 1818, and this new act was evidently framed, not to alter the construction of the old act, adopted by the Supreme Court, [166]*166but iu accordance therewith, and to remedy any inconvenience that might be occasioned thereby. The 36th section of this act, retained verbatim, as the 42d section of the existing act provides, that if sufficient money is not furnished to the overseer, then it shall be, and is thereby made his duty to open, amend, and keep the highways in good order, in the same manner as is prescribed to the overseers of those townships which elect to maintain their highways by labor, that is, by warning and calling out the inhabitants to work on them.. I am at a loss to imagine how the legislature could have more plainly indicated its intention to deny to the overseers of roads all power to incur expense, whereby the township should become a debtor, and liable to refund it. The plain and obvious purpose of the act was, to require all necessary expenditures on the highways to be defrayed from money kept in hand for that object, and in case the inhabitants neglect to-furnish such money, to subject them to be warned out to work.
By the 12th section of the act incorporating townships, Nix. Dig. 835,* the township committee have authority, and it is made their duty, “ to superintend the expenditure of any moneys raised by tax for the use of the township, or which may arise from the balance of the accounts of any of the-township officersand by the 39th section of the act concerning taxes, Nix. Dig. 799,† collectors and other township-officers are directed to pay the moneys received, to the said committee. It thus becomes the duty of the committee to-apportion the money raised for the highways among the several overseers, to be expended in their respective districts-as the committee, or a majority thereof, deem expedient. As individual taxpayers have a right to work out their road tax,, or a part of it, on the highways assigned to the overseer within whose limits they reside, provided they give written notice of their election to do so' within twenty days after the order for raising the said money shall be passed, no proper apportionment can be made until the time for giving such notices has elapsed. Nor is there any authority vested in [167]*167the committee, to divert the work of any taxpayer from the-district in which he resides, and assign it to another. But money may often be properly apportioned before it is in fact collected; and although the overseer is not bound to incur the expense of opening or repairing a road by hire until he has the money in hand, yet, if he thinks proper to act upon the faith of such an appropriation, he may do so. This is often done .in many parts of the state without dispute or difficulty ; and with a reasonable disposition-to do right, such a course is generally sale and expedient. There is, however, not only no-express power given to the committee to authorize the expenditure of money not actually voted by the town meeting, or to involve the township in any liability for expenditures on the highways, hut the clearest manifestation of an intention to prohibit any such course.
Assuming that the committee did in fact apportion to the plaintiff the amount of money he claims to have expended, I am clearly of opinion that he cannot enforce his claim by action against the township. In the absence of a right of action, the money, when actually in hand, may probably be obtained by a mandamus, biit as to this it is not necessary now to express an opinion.
There was in this case no evidence offered from which the jury had a right to find that the committee did in fact ever make any apportionment of this money. The committee is not required to keep a record of their proceedings, although it is obvious they ought to do so; or if not, they should draw up their orders in writing, as they are expressly required to do when they assign to the overseers their divisions of the highways. There appears to have nothing more passed than loose conversations between the plaintiff and the chairman and other members of the committee, the plaintiff himself testifying, that he did not know of any resolution or vote being passed by the committee. To allow such a proceeding to have the force of a resolution binding on the committee or the township, would be contrary to every principle of evidence and. exceedingly dangerous.
[168]*168It was urged, for the plaintiff, that the construction of the .acts above adopted, conflicts with some other parts of the road law which show a different meaning. It was said that the whole tenor of the different provisions of that law, and espe-cially the prohibition to expend money on the roads, between the first-of October and the first of April, show that the ■money ordered to be raised by the township meetings was intended to be expended during the current year. ' I am however unable to discover any such design. The positive injunction to have money in hand, implies that it was not expected to be expended until collected, which is seldom if ever ■effected until after the first of October. The act of 1857, 3 Nix. Dig. 754, § 98,* requires only that the overseer shall not require or employ any persons to work on the roads, between the first of October and first of April, except it may be necessary to make them passable when obstructed by snow or rain. The act authorizing the town meetings to vote and raise money for opening and repairing roads, contains no restriction as to the amount or the time of using it. Difficulties may sometimes arise in carrying out the provisions of the 25th section, which authorizes taxpayers, under certain circumstances, to work out their road tax; but these can be best obviated, by the committee waiting until the precise amount ■thus to'be worked out is ascertained before they re-assign to the overseers their divisions, and apportion to them the money •ordered to be raised, and would only be increased by giving ■to the overseer or the committee the power to bind the township for the payment of money expended on the roads.
If the intention Was that the money ordered to be raised •should be expended before it was collected, it would seem to follow that the overseer should be bound to expend his proportion, whether he was willing to do so or not. This, however, was not contended for, and is clearly not the design of the law. A resolution to work the roads by hire cannot be ■changed for three years; this delay and the injunction to keep money on hand, united with express authority to the [169]*169overseer to warn out laborers when he is not furnished with money, show, I think, very satisfactorily, that it is the true intent and object of the statutes, that money sufficient tG' open and repair the roads should be voted and collected in advance, and kept always on hand, and that, if the inhabitants neglect to do this, they shall be subject to be warned out and do the work, as a part of the burthens imposed on them, for the public good.
I am therefore of opinion that it should be certified to the Circuit Court—
Eirst. That there was no evidence tending to prove the defendants liable to the plaintiff for the amount claimed, or any part thereof, which should have been submitted to the jury.
Second. That the charge of the judge was in all respects correct.
The Chief Justice and Haines, J., concurred.
Rev., p. 1003, § 39.