Tivey v. People ex rel. Townsend North

Christiancy J.: The non-resident highivay taxes which the township treasurer was, by the mandamus, commanded to pay over to the relator, were not raised by virtue of the act of February 10th, 1855, but were assessed and collected under the general highway tax law; and this general law, but for the act of 1855, required the money to be expended in the several road districts, in which and for which it was raised. The act of 1855 undertook to divert the tax, after it should be collected, from the purposes for which it was assessed, and to authorize its expenditure in any part of the county upon the particular road described in the act, by commissioners “whose duty it shall be to superintend the expenditure of such sum of money.” The act does not assume to operate upon the taxes till actually collected and in the hands of the township treasurer, or the overseers of highways; but when so collected, authorizes the commissioners to demand it, and requires the treasurer and the .overseers, in whose hands it may be, to pay it over to the commissioners, for the purposes of the act. The commissioners are not authorized to make contracts on the faith of the money before received [131] by them, but merely to superintend its expenditure, after they have received it. Admitting, for the purposes of this case (without intending to affirm) the constitutional validity of this very questionable legislation, and admitting also the right of the relator alone, as one of the commissioners, while this act remained in force, to call for this money, and to institute this proceeding, still it is manifest'that both his right to demand, and the duty of the treasurer to pay to him, this money, were created by the act of 1855, and rested upon that alone. Independent of this act, neither the right nor the duty had any existence. The commissioner never obtained possession of the money: it still remains in the hands of the treasurer, who disputes his right: and while this dispute is in progress, and in course of litigation, the Legislature, by the act of 1859, amend the act of 1855, by striking out from that act the township in which the taxes in question were raised, and by repealing “all acts and iDarts of acts which contravene, or are inconsistent” with, the act of 1855, as amended, without any saving of rights accrued or suits commenced. If the money were now to be paid to the commissioners, they could expend no part of it in this township, where before they might, if they had seen fit, have expended the whole. As the right of the commissioners, and the duty of the treasurer, were created by and entirely dependent upon the act, when that ceased to exist, the right and the duty expired with it. — See Town of Guilford v. Supervisors of Chenango, 3 Kern. 143 ; Commonwealth v. Duane, 1 Binney, 601; Stoever v. Immal, 1 Watts, 258; Norris v. Crocker, 13 How. 438; Hampton v. Commonwealth, 19 Pa. St. 329; Williams v. County Commissioners, 35 Me. 345; Butler v. Palmer, 1 Hill, 330 ; Sedgwick on Const. and Stat. Law, 129. This disposes of the case, and leaves us no apology for the discussion of the other questions relied upon by [132] the plaintiff in error. The judgment of the Circuit Court must be reversed. The other Justices concurred.