Newark post., 1915-03-10

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writ, on two grounds, which may be brief
ly stated a8 follows
First: The lack of funds applicable to
the payment of the relator s account.
Second, The account of the relator, ap-
proved by the Commissioners, is greater
than the amount justly due under the
contract, and the court will not direct
peremptory writ when the relator s clami
is disputed.
The defendant argues that it is the
duty of the Treasurer of the Town of
Newark, under his bond, to protect and
safeguard the interests Of the munich
pality, and he cannot, therefore, be COM
PEELED to issue a warrant for an amount
that is not justly due and payable; or
even for an amount which is justly due
if there are not sufficient moneys in the
treasury out of which the same may be
legally paid; that the only fund appli-
cable to the payment Of the relator S
claim is that which was derived from the
sale of bonds authorized by statute,
which fund is insufficient to pay said
claim; that the moneys in the treasury
received from sewer assessments cannot
be applied to the payment of relator s
claim because they are specifically ap-
propriated by the statute to the payment
of other obligations.
hn latn tct +1o%
ticient funds in the defendant s hands to
pay the REALTORS claim, because any
moneys in the treasury Of the Town are
applicable to such claim if the fund de-
rived from the bond issue is insufficient !;
that including the moneys in the treas
ury received from sewer assessments the
fund is ample, and the warrant for the
payment of the relator's account when
issued will be certificate of indebted
ness which is one of the obligations the
statute specifically provides shall be paid
out of the moneys derived from sewer
assessments.
The reator contends further and gen.
orally, that even though there be lack
of funds applicable to his account, and
a peremptory writ will not be issued to
compel the performance of an impossible
thing; viz the PAYMENT of money
when there is no money to pay, still the
court may and WILL in case of this kind
direct the writ to compel the issuance of
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sufficient moneys in the treasury to pay
it.
The ground of this contention, is that
, the issuance of the warrant by the treas
urer is ministerial duty under the stat
ute which provides that he SHALL issue
the warrant when the Sewer Commission
ers or a majority of them have approved
! the bill.
!. 1t seems to the Court that this is the
/ crux of the case-the only question tina
need be considered if the contention OF
: the relator is sound
a This is not proceeding to compel tn,
: defendant to pay the REALTORS bill. Il
y it was, the fact that there was not enough
I, money in the treasury for the purpos,
t might be a good defense. The court vii
not in mandamus issue the peremptor,
+ writ to compel the performance of an i'm
d possible act. The issuance of the wri
: under such circumstances would be futile
Il and in such case the writ will not be is
f sued.
But that is not this case. The issu
: ance of the warrant is not only possible
y but it is mandatory under the statut
l. when the contractor s account has bee1
: approved by majority of the Sewe
: Commissioners.
Il The fact that the defendant is the off
Il Ger who pays the bill can make no differ
+ ence in the application of the law or tn
$ performance of the defendant s duty re
specting the issuance of the warrant. TIL
% issuance of the warrant is one thing
n one duty; the payment of the bill is an
It other and different thing. The issuanc
IS of the warrant was as much the duty O
II the defendant as it could be sf he wa
'e not also the paying authority.
4 The powers given by the act to tn
; Sewer Commissioners in respect to tn
E. construction of sewer system are yer
+ broad.
'r While all contracts for labor done an
Is materials furnished are required to b
u executed in behalf of the town by th
F. President and Secretary of the Counc
he under the seal of the town, they al
'i nevertheless authorized and awarded
or the Commissioners. The Commission ."
ae vested with every power necessary
u proper for the construction of systel
IL of sewers and disposal works. 1t
authorized to employ such assistance
III it determines necessary, and fix the r
III muneration thereof, award contracts fl