Outwater v. City of Passaic , 51 N.J.L. 345 ( 1889 )

The opinion of the court was delivered by

Beasley, Chief Justice.

The case stands before this •court on a special verdict, finding the following facts, viz.: That the plaintiff was treasurer of the defendant for one year at a certain salary, and that such term of service had expired at a period more than six years before the beginning of this suit. The question propounded by the jury to the court is, whether this claim for official compensation is barred by the .statute of limitations.

By the charter of the city of Passaic the common council is required annually to appoint a city treasurer, and power is also given to it to prescribe and define, by ordinance, the duty and compensation of such office!’. In pursuance of this authority, an ordinance was passed giving the city treasurer the emolument of $400 per annum, and the plaintiff makes claim for this amount for one year’s service.

The plea, purporting to interpose the bar of the statute of limitations to this cause of action, is plainly defective and insufficient, but as no allusion to such defect has been found in the briefs of counsel, the case will be decided irrespectively of faults in the pleadings.

The statute of this state limiting, in point of time, the right to sue, has, among its various provisions, the well known requirement that “all actions of debt founded upon any lending or contract without specialty, &c., shall be commenced and .sued within six years next after the cause of such actions .shall have accrued, and not after.”

It is contended by the defendant, that this restriction is applicable to the present action, inasmuch as its basis is a debt founded upon a contract.

In support of this contention, the court is referred to judicial decisions that express the doctrine, that contracts made-with municipalities are like agreements with individuals, subject, with respect to their enforcement by suit, to the regulations of the statute in question. There appears to me no roonx for doubt on this subject, for no reason can be assigned why, when a public corporation owes money by force of a contract, such claim should not be barred after the lapse of a reasonable period. If an ordinary agent performs work for a municipality at its request, the right to compensation has its foundation in the contract, as much so as though both the actors in. the transaction were merely private persons. The authorities-referred to affirm this principle, and nothing more.

But it is quite obvious, that a salary due to a public official-is altogether different in its nature from such debts as these.. Such a right neither does, nor can, originate in a contract. When a citizen is elected to a public office there is no agreement on the subject between his electors and himself; they-require him to take the office, and no option to accept or refuse it is left to him, for he is constrained to perform its-duties under pain of a criminal prosecution. Nor can he-stipulate for his compensation; he must perform the official functions even though he is obliged to do so gratuitously. The endeavor to bring such a liability within the domain of conventional obligations is destitute of all force, as it is-opposed to the essential facts of the case. The claim for this ■ money is not barred by the statute, for the plain reason that it is not á debt which has arisen under a contract, either express or implied; the obligation to pay these moneys is the-creation of the statute directing the election of the officer, and the admeasurement of his salary by ordinance.

Nor is this case distinguishable from that of Cowenhoven v. The Freeholders of Middlesex, reported in 15 Vroom 232. The only circumstance in which the two cases are unlike is, that in the reported case the statute itself fixed the amount of the salary, while in the present one the act requires the • common council to do that act by its ordinance; but this-variation may be a distinction, but does not constitute a difference, for when the official emolument has been thus fixed in the prescribed mode, such ascertainment is the act of the statute, through the instrumentality of the common council. When the officer had been elected, and the amount of his compensation settled, the entire affair was purely a compliance with the statutory direction. The decided case, in point of principle, rules the one now before the court.

It may be well to say that the statute of limitations, being in derogation of the common law, has very generally been construed with strictness, 'and that probably no case can be suggested to which the reasons for its enactment are less applicable than the one now under consideration. As time elapses, in general, transactions become obscure, vouchers are lost, memory fails, witnesses pass away, and experience soon demonstrates the unsatisfactoriness of judicial investigations under such conditions. These considerations, and others of a like kind, called the act into existence. And certainly it is plain, that none of these hinderances can be apprehended in the trial of such a cause of action as the present one, although it may have become stale by lapse of time. What uncertainty can arise with regard to the question, whether a certain person occupied a public office in a given year, or with respect to the amount of his salary? Such an investigation proceeds on settled grounds; the question is one to be evidenced by public notoriety, and municipal records, documents and ordinances. Such a cause of action would seem to be aside from the reason and spirit of the statute.

The result is, that the court is of opinion that the statute which has been pleaded does not bar the claim in question, and that the plaintiff is entitled to the judgment on the verdict.