(dissenting). The plaintiff in this ease had been elected an overseer of the highways for district No. 47, in the township of Morris, for the year 1860. He met the township committee at their first meeting thereafter, and was directed by them, or some of them, to work out or expend on his district the same amount that had been expended by his predecessor the year before, which was $132. He worked out and expended accordingly on his district the sum of $102.42. He kept an account of this work and expense, and in October, of the same year, he rendered his account to the committee of the township. The committee did not at first, but afterwards objected to paying the bill, for the reason that a part of it was not due; but proposed to pay a part of it, to which they did not object. The bill not being paid, the plaintiff brought this suit against the township, in its corporate capacity, to recover the claim.
After the evidence was closed, the Chief Justice charged the jury, not only that the present plaintiff could not recover,, but, if I correctly understand it, that no action of the kind could be sustained under any circumstances.
*170Overseers of the highways are elected under the act incorporating the townships, and the legal voters of the townships are by that act authorized to vote at their town meetings, to raise such sum or sums of money, for the opening, making, working, and repairing of roads, and keeping them in repair, as they may think necessary; which money is to be raised by a tax assessed on the inhabitants of said townships. The township committee are also elected under the provisions of that act, and this committee is not made up of mere machines, whose every possible motion is particularly presented, and outside of which they cannot go; but they are evidently intended to be elected at that time by the corporators, so to speak, as a kind of board of directors, to manage especially the financial affairs of the corporation. They are authorized to act through a quorum, like most, if not all other boards •of directors. Their election is provided for in a clause of the section, apart from those which provide for the election of other officers; and the duty is imposed upon this committee, not only of examining, inspecting, and reporting to the town meetings the accounts and vouchers of the township •officers, but also to superintend the expenditure of any money raised by tax for the use .of the township. It seems to me, therefore, that this township committee are, to some extent, the legally authorized agents of the township; and when they ant within, and not outside of their powers and duties, their acts will bind the township, very much the same as the .acts of other agents, duly authorized, will bind their principals.
One of the duties imposed on the township committee is to divide the township into districts, and to assign to each ■overseer of the highways his particular district, for the purpose of opening, clearing out, working, amending, and repairing the highways therein, and these assignments the respective overseers are bound to observe and conform to.
It is then made the duty of the several overseers to hire laborers, horses, plows, wagons, and other things necessary *171to open, clear out, make, work, amend, and repair and keep in good order the highways within their respective districts.
It is then declared, in the next section, that the money necessary to defray these expenses, shall be raised in the manner prescribed in the act incorporating the townships before referred to, that is by a tax, after a vote to that effect by the inhabitants.
It appears to me, then, that when the townships have duly elected their township committees and their overseers of the highways, aud all are duly qualified; and when they have also, by vote, determined to raise by tax sufficient money to make and repair the highways of the township, and when the committee has duly assigned to each overseer his particular district, and informed him of the particular amount of money that had been or would be appropriated to his district; (for it is unquestionably the right not only, but the duty of the committee in discharging their obligations, to superintend the expenditure of money, to apportion the amount raised or ordered to be raised for the purpose among the different road districts of the township,) and when the overseer has gone to work, as directed by the statute, anti hired the men and teams, and wagons and carts, and made, opened, amended and repaired the roads of his district, and incurred all the expense of it himself, not exceeding the sum apportioned to his district, and has duly accounted for such work and expenditure of money to the committee; aud when .all other duties presented by law, if any, have been performed, and the money to defray such expenses has not within a proper time been paid or refunded to such overseer, it appears to me, I say, after all these tilings have been done, and the money has not been paid to him, that the township itself is liable to him for the amount, as to one of its agents aud servants who lias performed labor and service for it, and expended money in its behalf pursuant to its own action and request, and also iii pursuance of the law of the land; for every step taken by any one in the premises is just such step as the law enjoins or recognizes.
*172It was remarked, in the charge, that the whole act shows, clearly, that the roads are to be worked on the cash, and not on the credit system. So far as this part of the act is concerned, it seems to me directly otherwise ; and from the construction that has always been given to it, the practice has been, nearly, if not quite always, to the contrary. From the-nature of the thing, the work is done before the money is-raised. So far as my observation, extends, the committee- and overseers of the highways are always elected at the same town meeting when the money is ordered to be raised-The money is not assessed and collected till late in the season, whereas the work is generally done on the roads in the early part of it, and upon the credit of the money voted to-be raised at the previous town meeting, when the overseers were elected.
Of course a township would never raise money by tax in one year to pay for working the roads the next year; for the voters at the next year’s town meeting might vote not to work the roads by hire, but by labor: and if the money for that purpose should be borrowed from some other source, with a view to have it ready to advance to the overseer to-pay for the work before it is done, it would seem to be going somewhat on the credit system; and then, too, the inhabitants might decide at the next town meeting, that they did not want it for that purpose, but would work the road by labor.
A township newly organized, which elected its officers at their first town meeting in the spring, and at the same time • voted to raise the money necessary to work the roads, could not possibly raise the money by tax to do so before the work should be done, unless it-should be delayed until December.
All of the sections of the act touching this subject, up to-the 37th, go on the presumption that the roads are to be worked by hire, and all the regulations and provisions of the act, thus far, are based on this assumption; but by the 37th section, the inhabitants of the township are authorized to-determine, by vote at their annual town meeting, whether-*173they will work their roads by hire or by labor. If they determine to do it by hire, then the mode of doing it is already provided for. If they decide to do it by labor, then another mode of proceeding is to be adopted. This latter course the townships may take if they so determine; but if they do not in fact, determine to pursue that course, the conclusion of law is that they determine to work by hire, unless they refuse or ■omit to order the raising of the money for that purpose.
If the township elects and determines to work by hire, but fails to raise, or order raised, the money with which to do it, in that case the overseers are directed to proceed as though the determination had been to work by labor, and to warn and call out the inhabitants for that purpose. But this can ■only occur, when the township has determined to work by hire, but has wholly omitted to make any provision by vote, for the raising of any money for that purpose; for if the •township votes and determines to work the roads by hire, and at the same meeting votes and determines to raise by tax the money necessary to do it with, the overseer has then no right to call out the inhabitants, and make them liable to the penalties of disobedience. He is then authorized and required to consider that the roads are to be worked by hire; .and if his district be properly assigned to him, and if he be apprized by the committee of the amount of money that will be or has been apportioned to his district, out of the money so •ordered to be raised by the township, he has a right to go on and expend that amount in repairing, <fcc., the roads of his ■district; and if the amount, not being above the proper apportionment, be afterwards improperly withheld from him, he can, I think, maintain his action for it against the township.
It is said, however, that the committee have no right to make such a contract with the overseer. They do not make any contract. It is not necessary that they should do so. The right of action does not arise out of a contract but out of the law, when all of its directions have been complied with. It is the duty of the committee to assign the districts, *174and, I think, to apportion the money properly to or among them. It is not necessary that they should go any further, unless it be simply to apprize the overseers of these facts. If the township did not vote to raise the money for this purpose, no contract by the committee in the case could make it liable. This the overseer is bound to know, for he knows, or is bound to know, that if the township does not make provision for the raising of the money, he cannot undertake to work the roads by hire, for in that case his duty is to take the other course, and call out the inhabitants.
It is also said that the proper remedy in this case, if one exists, is by mandamus against the committee or its treasurer for not paying over the money. I am aware that this mandamus proceeding has become quite a favorite one of late. I recollect that it was used in one case as a substitute for the action of ejectment, and in .these days of non-imprisonment and family exemptions, and debts and difficulties in collecting, I should not wonder if it should be generally resorted to for the collection of bad debts. To collect a debt would certainly be its character, if used in a case like this. Be that as it may, I certainly think it should not be resorted to in cases like the present; for, in the first place, here is a dispute, as there may be in every such case, as to what amount is actually due, which is not properly the office of a mandamus to determine. And then it may be, that an overseer may be deprived of his money, without any fault on the part of tire committee or their treasurer. The committee do not raise the money when ordered to be raised by the township; this is done by other agents of the township, over whom the committee have no control.
If the proceeding by mandamus might lie in such case, it is not a proceeding of right but of discretion; and while a party might reasonably calculate on what the law would do-for him, he might be quite at a loss to tell where the discretion of a court might land him.
Again, while a mandamus might have the effect to punish some delinquent official, it might be wholly powerless in get*175ting for the plaintiff his money. He should not therefore be shut up to a remedy like this.
If it be admitted that a mandamus might be used in such cases against the agents, I do not see how it can, nor why it should, deprive the party from his usual remedy against the principals for work and labor which he has performed, and money which he has paid out for them, according to their different votes, and in strict pursuance of the law, as one of their appointed and lawful servants.
The evidence in the case before us, is not as full and clear as it might have been perhaps; but I think that certain facts may be considered as either admitted, or so far proved as that the jury should have passed upon them.
1. That the township committee as well as the plaintiff, had been duly elected at the town meeting next preceding the doing of the work, and had entered on the duties of their respective offices, and that at the same town meeting, the voters duly voted to raise money to work and repair the roads.
2. That the plaintiff’s district had been duly assigned to him by the committee.
3. That the committee had determined that a portion of the money so ordered to be raised was to be appropriated to the plaintiff’s district, and so informed him.
4. That he accordingly went to work, and expended on the roads of his district the amount named, or some part of it.
These facts show that the plaintiff was entitled to recover something, and the jury should have been permitted to ascertain what it was.
Our roads are badly enough worked now; but if every overseer is to understand, that unless he gets his pay in advance he can never recover it, except from some delinquent agent, by a proceeding which he has never before heard of, we shall be far worse off than we are now.
I think, therefore, that the Circuit Court of the county of Morris should be advised to set this verdict aside, and grant a new trial.
The charge of the Chief Justice sustained.