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The opinion of the court was delivered by
BERGEN, J. Eight writs of certiorari were allowed for the purpose of testing the sufficiency of a like number of indictments found in the Bergen County Oyer and Terminer against the members of the common council of the borough of Park Ridge. Seven of them are substantially alike and are governed by the same legal rules, so that the disposition of one will control the result in all. The remaining indictment contains counts not embraced in the others which require separate consideration, and will be dealt with after I have disposed of the others.
One of the seven is an indictment against David Brom and five other defendants, and it charges that the defendants, as members of the common council of the borough of Park Ridge, “did willfully and unlawfully vote for the disbursement of public moneys in excess of the appropriation of Park Ridge in that the said defendants did vote to disburse the sum of $553.13 to George Bennett, for which no appropriation had been made, which the said defendants then and there knew."
This indictment is based upon section 31 of the Crimes act (Pamph. L. 1898, p. 803), which, inter alia, makes it a misdemeanor for the common council of any borough in this state to "disburse, order or vote for the disbursement of public moners in excess of the appropriation respectively to any such board,” or to “incur obligations in excess of the appropriation and limit of expenditure provided by law” for the purposes of any such board.
The statute relied on was first adopted in this state in 1876 (Pamph. L., p. 16) in substantially the form in which it now appears in section 31 of the Crimes act. In construing the act of 1876 Mr. Justice Van Syckel, in State v. Halsted, 10 V room 402, 411, said that it would not suffice to allege in the general words of the statute that the defendants did incur an obligation in excess of the appropriation; the particular act which constitutes such disregard of this statutory provision must be disclosed. The present indictment, after charging that the defendants voted to disburse public moneys "in
excess of the appropriation of said borough of Park Ridge," proceeds to disclose what it is alleged constituted the violation of the statute, and the question presented is whether it is sutricient. We think it is not, for it simply alleges that the defendants, as members of the common council, voted to disburse the sum of $553.13 to George C. Bennett for which no appropriation had been made; it does not charge that there should be a particular appropriation for this payment, or that the payment voted was in excess of moneys appropriated to the common council for the general purposes of the municipal government, out of which, for all that appears, the claim of Bennett might be properly paid. The charge is that no appropriation had been made to pay Bennett, but that does not imply that in paying Bennett it was required to exceed the money appropriated to the common council. The manifest intent of the statute is to forbid voting for the disbursing of public moneys in excess of the amount appropriated for disbursement, and not the prohibition of voting money to one for whom no particular appropriation has been made, so long as the money appropriated for the use of the borough is not exceeded. It may well be, in fact the presumption is, that payments to individuals by a municipal body are made iron a general appropriation raised by taxation for the different branches of local government, which is the appropriation meant by the law, and not that there shall be a special appropriation to cach person likely to become its creditor.
Under the Borough act of 1897 (l'amph. L., p. 28.5) the common council have power to raise and appropriate money for many different purposes, and the indictment should set out some facts showing which appropriation was exceeded, or that the payment could not properly be made because not within any of the purposes provided for.
In the present case, if the indictment be held sufficient, proof that the money had been voted to Bennett, and that no appropriation had been made to pay him, for it is not charged that no appropriation has been made to the common council, would be sufficient to convict the defendants, although the
general appropriation to the common council had not been exceeded. The facts set out disclose, not that no appropriation had been made to the common council, and therefore any disbursement would be in excess of appropriations, but that no appropriation had been made for this particular payment.
The remaining indictment contains two counts, the first charging Robert A Sibbald as mayor, and the other defendants as members of the common council of said borough, with unlawfully disbursing public moneys in voting to purchase certain land for which no appropriation had been made. This charges no crime, for voting to purchase is not an appropriation of the purchase price, and there is no averment that the purchase was ever carried out in any such way as to be binding on the borough. The second count charges that the defendants incurred “an obligation upon the said borough of Park Ridge in excess of the appropriation, by giving then and there to one Andrew Perry a note for $660 in consideration of the conveyance of certain lands," which obligated the borough to pay that sum. This count is also defective, for it does not state any fact which constitutes a violation of the statute. Incurring an obligation “in excess of the appropriation” is not enough, it must be “in excess of the appropriation and limit of expenditure provided by law for the purposes, respectively, of any such board.” Under the act relating to boroughs and its supplements, the common council may incur obligations for certain purposes without any appropriation being made, and in order to bring the defendants within the terms of the law, the indictment should show that the obligation required an expenditure in excess of that provided by law. This indictment has not even the merit of following the words of the statute, and is entirely devoid of a statement of any particular fact or facts from which a violation of the law can be inferred. If the borough council had no power to make the note, and therefore it had no binding force, then, under Marley v. State, 29 Vroom 207, no crime was committed.
All of these indictments are defective and should be quashed, and an order will be entered in each case quashing the indictment.
BENJAMIS B. WESTCOTT, RELATOR,
Argued February 18. 1909-Decided June 7. 1909.
The offices of under-sheriff and chosen freeholder are, under "An act
concerning sheriffs" (Gen. Stat., p. 3110), incompatible, and the appointment and qualification to the office of under-sheriff of a person holding the office of chosen freeholder annuls his commission for the latter office.
On quo uarranto.
Before Justices GARRISON, BERGEN and VOORHEES.
For the relator, French & Richards and Lewis Starr
For the respondent, John W. IT'escott.
The opinion of the court was delivered by
BERGEN, J. The relator was, in November, 1907, elected a chosen freeholder of the county of Salem, from one of the wards of the city of Salem, for a term of three years, commencing Jamary 1st, 1908. He accepted the office, and on November 10th, 1908, while acting as such chosen freeholder, was appointed under-sheriff of the county of Salem by the sheriff of that county, and, having qualified, assumed the performance of the duties of the office to which he had been appointed. The common council of the city of Salem, having determined that the acceptance of the latter office disqualified the relator from serving as chosen freeholder, and that a vacancy in the office was thereby created,
elected the respondent to fill such vacant office until the general election to be held in 1909. The board of chosen freeholders of the county, having recognized such election as lawful, admitted the respondent to its membership, and he is now in possession of the office and performing the duties of chosen freeholder of the county. The relator instituted quo warranto proceedings to test the validity of the appointment of the respondent, who interposed a plea to the information in the quo warranto proceedings, in which, after stating the facts, he averred that the two offices were incompatible, and that under the statute prohibiting a sheriff from holding any other civil office, the office of chosen freeholder became vacant upon the acceptance by relator of the office of under-sheriff. To this plea the relator demurred, and the question presented here is the legal sufficiency of that plea.
Section 36 of the statute concerning sheriffs (Gen. Stat., p. 3118), declares "that no person shall exercise any other civil office during the time that he holds and exercises the office of a sheriff, and that by acceptance of the latter office, his commission for any other civil office shall be null and void.” The claim of the relator is that this statute is limited to the sheriff and does not apply to a person holding and exercising the office of under-sheriff. The relator also urges that the offices of chosen freeholder and under-sheriff are not incompatible, and that the same person may legally hold and exercise the functions of both offices. We have no statute providing for the appointment of an under-sheriff, but the ancient and wellestablished right of a sheriff to make such appointments is recognized in section 41 of the act relating to sheriffs (Gen. Stat., p. 3119), which requires the appointment, when made, to be in writing under the hand and seal of the sheriff, and the filing of an oath by the appointee before he intermeddles with the office. The power of the sheriff to appoint an undersheriff, although not expressly granted by law, has been so long exercised that it has become one of the accepted prerogatives of his office. In Bacon's Abridgment, under the title “Sheriff," it is said: “Although the King by his letters