East Union Township v. Ryan

Mr. Justice Woodward delivered the opinion of the court, It was a fatal objection to the admissibility of the warrants of the state road commissioners, that they were drawn in favor of Andrew Comrey, while Patrick Ryan was the plaintiff in the action. It is true they were made payable to Comrey, “or bearer,” but that did not give them any of the qualities of commercial paper. In Reeside v. Knox, 2 Whart. 233, it was decided that a draft by a mail contractor, payable to his own 'order, on the postmaster-gen [463] eral, was not a negotiable bill of exchange, so as to entitle a holder to sue in his own name. It was said in the opinion of the court that an indispensable element in the constitution of negotiable instruments is an absolute and entire freedom from contingency of payment depending on the happening of an event, or the solvency of a fund. Where a defendant had been convicted of the larceny of a county order, the judgment was reversed because the instrument was not within the terms of the Act of the 5th of April 1790, making it a felony to steal “ obligations, or bonds, bills obligatory, bills of exchange, promissory notes for the payment of money, lottery tickets, paper bills of credit, or certificates granted by or under the authority of this Commonwealth, or of all or any of the United States of America.” Warners. The Commonwealth, 1 Barr 154. Orders drawn by supervisors on a township treasurer, “ payable out of moneys arising from road taxes,” are not bills of exchange, nor contracts of any kind, and in a suit on them interest is not recoverable: Dyer v. Covington Township, 7 Harris 200. The holder of a county warrant or order cannot recover interest after demand and non-payment for want of funds. Such a warrant is not a bill, note, check or contract, nor is it a satisfaction of the original indebtedness: Allison v. Juniata County, 14 Wright 351. In that case an opinion was strongly intimated by Judge Thompson that an action would not lie on such a paper, but there was nothing to call for a decision of that question. In th'e First National Bank of Northumberland v. The Rush School District, 2 W. N. C. 471, the plaintiffs gave in evidence an order signed by the president and secretary of the school board on the treasurer of the school district, in favor of Abel Marcy, and proved Marcy’s endorsement. A nonsuit was ordered by the Common Pleas, and the judgment was affirmed. While the point was not distinctly made at the trial, it sufficiently appears that the verdict was obtained without any proof whatever of demand on the township treasurer. It is not necessary for the purposes of this cause to attempt an analysis of the cases in Avhich the rule of Luzerne County v. Day, 11 Harris 143, has been followed, overlooked or disregarded. The commissioners of this state road were appointed by a special Act of Assembly. Forming no part of the pervading governmental system of the Commonwealth, responsible to no existing constituency, and controlled by none of the restraints or limitations, and subject to none of the penalties by which the faithful performance of the duties of' ordinary municipal .officers are secured, these gentlemen were clothed by the legislature of 1873 with power to appropriate private property for the uses of a highway,.to enter into contracts for opening and making it, to take bonds from contractors, to decide finally and Avithout appeal on the character of the work done, and to draw Avarrants on the treasurers of the townships through which [464] the road should be laid for their respective proportions of the cost of construction. No supervision or control over the work — no participation in it even — was allowed to the township authorities. They were to have no part in settling prices or selecting contractors ; no inspection of the road by them during its progress or at its completion was authorized; they had no power to inquire whether the entire expenses were equitably apportioned or not; no provision for auditing accounts was made; no limit of expenditure was fixed, and no notice even of the number of warrants to be drawn on the treasurer of any township, or of the amounts to be drawn for, was prescribed. The townships were simply to pay. Done well or ill, the cost of the work, as adjusted by the commissioners, was provided to be met by a special tax in addition to the current burdens of the municipalities. Under such a statute, before they should become liable to be harassed by a lawsuit, it would seem just that the township officers should be afforded the opportunity at least of ascertaining the weight of the load they were to be called upon to bear. The construction of this highway was to be paid for out of a designated fund, to consist of a tax of two per cent, on the assessed valuation of the property of each township. The treasurer had no authority to appropriate to the payment of the warrants of the commissioners any moneys outside of the fund to be thus raised. Some reasonable notice by the holders of those warrants, conveyed by a demand of payment or in some other form, was requisite in order to fasten a liability upon the township officers. An action for the recovery of the amount of any warrant could only be maintained against them after such notice, and after the lapse of such a period of time as would enable them to collect this tax “at the same time,” in the language of the act, “ and in like manner as other county and township rates and levies are made and collected.” These warrants could only be payable aftqr such presentation as would give opportunity to provide the fund exclusively dedicated to their liquidation. On other grounds this judgment is unsustainable. The evidence consisted of the Act of Assembly of the 7th of April 1873; of the two warrants; of the testimony of Andrew Comrey that he was the contractor for the East Union portion of the road, and that he had endorsed the two warrants in suit, which he identified; and of the testimony of Patrick Ryan, the plaintiff, that he was the owner of the warrants; that he had worked for Comrey •on the state road, and had taken the warrants in payment, and that Barlow, Porter and Pluntzinger were the commissioners in charge of the road. The statute required the commissioners to make oath or affirmation before entering on their duties, that they would discharge them with fidelity and impartiality. Compliance with this' direction was not even alleged in the declaration. The work was to be done under contracts. No contract was shown, [465] and it was not proved that the road was built. The fifth section contained this provision: “The said commissioners are hereby-authorized and required to examine said road as the work progresses, and draw warrants in payment thereof in proportion to the amount of work performed, and no warrant shall be drawn until the work shall be approved by said commissioners.” It has been argued that their examination and approval are necessarily to be implied from the fact that they signed the warrants. But they formed, for the purposes of this highway, not only a new board of administrative officers,' but a new tribunal with judicial attributes. A jurisdiction was conferred on them that was in derogation of the common law, and in conflict with the general statutes regulating individual and municipal rights. The act was as novel as it was special. It placed the property of entire communities Under the discretionary authority of the commissioners, without security or responsibility for its exercise. Rights asserted under the powers they wielded ought to be affirmatively made out, and their action should be held subject to strict scrutiny. Before the holder of their warrants can recover a verdict he must show that the prescribed statutory steps have been duly taken, and the prescribed statutory duties literally fulfilled. The whole current of authority has pursued one direction in holding proceedings under enactments like this to rigorous account. A statute which gives a new remedy by summary proceedings, or other deviations from the ancient constitution, ought not to receive a liberal construction: Pool v. Neel, 2 Sid. 63. A statute creating a new jurisdiction ought to be construed strictly: 10 Rep. 75. Private acts of parliament, conferring new and extraordinary powers of a special nature upon particular persons, affecting the property of individuals, or giving exemption from a general burden attaching by law upon all parties, should receive a strict interpretation: Rex v. Croke, 1 Cowp. 26. In that case, which arose under an act for making a road from Blackfriar’s Bridge across St. George’s Field, Lord Mansfield held the corporation of the city of London, in exercising the powers given them, to rigid compliance with the terms of the act in the minutest details. Marshall’s Lessee v. Ford, 1 Yeates 195, was an ejectment by a purchaser at a sheriff’s sale under a mortgage to the trustees of the loan office, and a precept from one of the trustees. The question was as to the necessity for the production in evidence of the precept and a certified copy of the mortgage, as well as the sheriff’s deed. The court said: “The summary remedy given under the loaii office acts requires a minute and strict investigation. The mortgage is instar judieii, and must, with the precept, be produced as the basis on which the sale rests.” “It has been truly said that where the law gives a special jurisdiction to any body of men, it must be strictly pursued. Courts of justice are bound to watch their conduct narrowly, and investigate it minutely:” Wistar’s [466] Lessee v. Kammerer, 2 Yeates 100. Watt’s Lessee v. Gilmore, 2 Yeates 330, was one of a flood of cases illustrating the exact fidelity with which every act, every document and every advertisement connected with a sale of land for taxes before the passage of the Act of 1816, was required to be re-produced. In all actions in which a bankruptcy comes in question, unless otherwise provided by statute, it is necessary to go-through all the steps before entered into by the commissioners: Pleasants v. Meng, 1 Dall. 383. And in almost every instance of local, limited and exceptional jurisdiction, the same rule applies. In order to sustain this action, it must appear that the directions of the act have been pursued. It does not follow' that the commissioners were sworn because the law prescribed an oath. The provision that they should examine and approve the work was an injunction on them to investigate, deliberate and judge. The fact that the warrants were signed and delivered cannot be taken to imply that they performed that duty, or that a contract was ever made, or that the road has ever been constructed. All that was shown on the trial was, that the Act of Assembly had been passed, and that the commissioners named in it had issued their warrants on the treasurer of the township of East Union in favor of Andrew Oomrey for seven hundred dollars. Compared with what was proved, the margin that was taken for granted was too large. Judgment reversed, anda venire facias de novo awarded.