Opinion
01-15-1910
HAZARD et al. v. BOARD OF EDUCATION OF SCHOOL DIST. OF BOROUGH OF SWEDESBORO et al.
Martin W. Lane, for Hazard & Co. Joseph J. Summerlll, for James J. Davidson and Louis Dietrich. David O. Watkins, for Joseph D. Horner. French & Richards, for Thomas Partridge Ward. Charles V. D. Joline, for Charles Warner Company. Austin H. Swackhamer, for Louis P. Mayer. Lewis Starr, for Board of Education of Swedesboro.
Action between Horace C. Hazard and another, consolidated for the purpose of enforcing municipal liens against the Board of Education of the. School District of the Borough of Swedesboro and others. Distribution decreed.
Martin W. Lane, for Hazard & Co. Joseph J. Summerlll, for James J. Davidson and Louis Dietrich. David O. Watkins, for Joseph D. Horner. French & Richards, for Thomas Partridge Ward. Charles V. D. Joline, for Charles Warner Company. Austin H. Swackhamer, for Louis P. Mayer. Lewis Starr, for Board of Education of Swedesboro.
LEAMING, V. C. The present controversy relates to sufficiency of several claims of lien which have been asserted under the provisions of the municipal lien act (2 Gen. St. 1895, p. 2078).
As certain objections are made to the claim of Horace C. Hazard & Co. which are not applicable to other claims, these objections will be first considered.
At the time the notices of claim of lien were filed by Hazard & Co., the lumber referred to in the notices had been supplied to the contractor, but only a portion of the lumber so supplied had been actually used in the building. The portion so used has not been ascertained. The second section of the lien statute requires the notices to specify "that the labor was performed or materials furnished to the said contractor, and were actually performed or used in the execution and completion of the said contract with said city," etc. It seems clear that under this legislative requirement no lien can be claimed for material which has been, at the date of the notices of the lien, supplied to the contractor, and which has not been, at that time, used in the building. This view has been adopted by this court, in National Fire Proofing Company v. Daly, 74 Atl. 152, 155. In the absence of evidence of the amount of lumber supplied by Hazard & Co. which had been used in the building at the time the notices of claim of lien were filed, I am unable to discern how the notices can be made effective under the provisions of the act. It appears that the remaining portion of the lumber was subsequently used in the building by the second contractor, but no notices of claim of lien have been filed based upon that fact.
Another objection to the claim of Hazard & Co. Is, I think, fatal. The first section of the act confers a lien only when the requirements of the second section of the act are complied with. The requirements of the second section of the act are that two notices of claim of lien shall be filed, one with the chairman of the board having charge of the work, and the other with the "financial officer" of the municipality. The language of the act is entirely clear in this respect. The defendant municipality is a school district, and the board which had charge of the work was the board of education of that school district. The notice of claim of lien of Hazard & Co. which was intended for the financial officer of the school district was filed with the treasurer of the borough of Swedesboro. It seems impossible to regard that officer as the financial officer of the school district which made the contract for the erection of the building in question. The school district is an independent municipal organization, with its own officers, and includes within its boundaries the borough of Swedesboro and the township of Swedesboro. The treasurer of the borough of Swedesboro and the corresponding officer of the township of Swedesboro have no connection whatever with the school district or its affairs, except to turn over to it certain taxes which are collected within the borough and township, respectively, for the school district. It seems impossible, therefore, to regard either the treasurer of the borough or the collector or treasurer of the township as financial officers of the school district even in a limited sense. While they have financial duties to perform which inure to the benefit of the school district, they are not, in fact, officers of the district. The lien statute must also be deemed to have had a rational purpose, and it seems quite impossible to conceive a legislative contemplation of benefits to flow to a school district from a notice of claim of lien filed with a borough or township treasurer. I am obliged to conclude that the treasurer of the borough of Swedesboro, with whom one of the statutory notices of claim of lien of Hazard & Co. was filed, cannot be properly regarded as a financial officer of the school district of Swedesboro within the meaning of the act in question.
As to the remaining claims, but two classesof objections have been raised. As to some of the claims, it is urged that the notices of claim of lien have not been filed with the financial officer of the school district; as to other claims, it is urged that no notice of the pendency of an action for their enforcement has been filed pursuant to the requirements of the fourth section of the act.
Some of the claimants have filed their notices of claim of lien with the district clerk of the school district as its financial officer, while others have filed with the custodian of school moneys as the financial officer of the district All claimants have filed duplicate notices with the chairman of the board of education. It is therefore necessary to ascertain who is the financial officer of a school district within the meaning of the act.
In Hall v. Jersey City, 62 N.J.Eq. 489, 495, 50 Atl. 603, 606, this court held that a notice filed with the comptroller of the city of Jersey City sufficiently complied with the requirement of the act that the notice should be filed with the "financial officer." The view was there taken that the duties of the comptroller of that city were such that he was, "'par excellence,' the financial officer of the city." An examination of the school law, passed at the special session of the Legislature October 13, 1903, and its amendments, will disclose that no officer exists in school districts with duties similar to those of the comptroller of Jersey City. Each school district is required to elect a board of education, and that board elects from its members a president, vice president, and district clerk. Acts 1903 (Sp. Sess.) c. 1, § 85. Each school district is also required to have a custodian of school moneys, who receives and pays out all moneys of the district. Acts 1903, § 184. The custodian of. school moneys may be the same person who is treasurer of the municipality in which the district is situate, or the board of education may designate the collector of such municipality as the custodian, and where, as here, the school district contains more than one municipality, the board of education may appoint any suitable person as custodian. P. L. 1904, p. 341. All bills are passed upon in the first and final instance by the board of education, and, if allowed, orders or warrants for their payment are drawn on the custodian by the district clerk, and countersigned by the president of the board. An examination of the detailed statutory duties of the custodian and district clerk will disclose that neither can be said to be the financial officer of a school district in the broad or comprehensive sense in which that term is applied to a minister of finance in continental Europe or to the Chancellor of the Exchequer in England or to the Secretary of the Treasury in the United States or to the comptroller in many of our cities; but both the custodian and district clerk may be appropriately said to be financial officers in the narrower or more restricted sense that they have some financial duties to perform. In a popular sense the custodian would undoubtedly be regarded as the financial officer, as he is the officer who is intrusted with the finances of the district, and I entertain no doubt that a notice filed with him as the financial officer meets the requirements of the act; but I am also convinced that he is not so distinctively or exclusively the financial officer of the district as to justify the conclusions that a notice filed with the district clerk fails to comply with the spirit of the act. The district clerk has duties to perform which are, in their nature, essentially financial duties. The duty is imposed upon him to "pay out by orders drawn on the custodian of the school moneys * * * all school moneys of the district." He is required to keep a detailed account of all the expenditures, and to report to each regular meeting of the board the amount for which warrants have been drawn since his preceding report, and to disclose in such reports the several accounts against which the warrants have been drawn and the balance to the credit of each account. At the annual meeting of the school district he is required to make a statement of the financial condition of the district, and a copy of such statement is transmitted to the county superintendent of schools. Acts 1903, § 91. He may also be given the power of purchasing supplies for the schools. Acts 1903, § 90. These and other provisions of the school law disclose that the district clerk is the officer who, as clerk and as a member of the board, is above all others in touch with the affairs of the district, and who, above all others, is acquainted with the detailed finances and financial condition of the district. If, therefore, force is to be given to the provision of the act now in question in harmony with its manifest spirit and purpose to insure to the district adequate notice of the lien, it seems impossible to deny the sanction of the act to a notice filed in duplicate with the district clerk and president of the board. My conclusion is that either the custodian of school moneys or the district clerk may be properly regarded as the financial officer of a school district, and that a notice filed with either of them as the financial officer of the district is within the spirit and reason of the municipal liens' act.
As already stated, objections are also made to some of the claims because notices of the pendency of the action for the enforcement of the liens, referred to in the fourth section of the act, were not filed by the claimants. The force of the requirements of that section of the act has been recently considered in this court by Vice Chancellor Stevens in National Fire Proofing Company v. Daly, 74 Atl. 152. It is there held that when one notice of pendency of an action is filed, it is unnecessary for the other claimants who are named therein to file similar notices. That decision must control my action in this case. I will, however, call attention to the case of McDermott v. McDonald, 50 N. Y. Super. Ct.153. The decision in that case is in harmony with the views expressed by Vice Chancellor Stevens. It construes the New York act, of which our act is a copy, at a time prior to the adoption of the New York act by our Legislature. In that view the decision may he appropriately regarded as adopted by our Legislature as a part of the act. It should also be observed that Newman Lumber Co. v. Wemple, 56 Misc. Rep. 168, 107 N. Y. Supp. 318, appears to be based on the New York statute of 1002, and McAllister v. Case (Com. P1.) 5 N. Y. Supp. 918, appears to be based on the New York statute of 1885.
But I do not understand that any adjudicated case has gone so far as to hold or imply that any claim of lien can be enforced unless suit is brought on the claim and notice of pendency of the suit, filed pursuant to the fourth section of the act within 90 days from the filing of the notice of claim of lien, unless some other claimant has, within that period, brought suit and made such claimant a party, and filed a notice of the pendency of suit which names such party. I understand the adjudicated cases to go no further than to hold that when any claimant brings suit making other claimants defendants, and files a notice of pendency of such suit naming in the notice such other defendant claimants, such other claimants, who are thus brought in to assert their claims by way of answer, may be deemed to have commenced an action at the time they were thus made defendants, and hence the period of 90 days will no longer run against such parties defendant, and they may be excused from filing independent bills to enforce their liens, and also excused from filing independent notices of the pendency of a suit in which the validity of their claims is to be determined. The provisions of section 4 are entirely plain to the effect that no lien shall be binding unless an action be commenced within 90 days from the filing of the notice of claim of lien, and a notice of pendency of the action be filed, within that period, on the financial officer. The provisions of sections 7 and 8, authorizing claims to be asserted and heard by way of answer to a bill filed by another claimant, may excuse the necessity of independent actions and independent notices of the pendency of actions, but no provision of the act dispenses with the requirements of section 4, to the effect that the lien shall terminate in 90 days from the time the claim of lien is filed, unless within such 90 days action in some form be brought to enforce the lien, and notice of the pendency of the action in some form be given to the financial officer.
With these principles in view it becomes necessary to consider each claim separately.
Claim of Horace C. Hazard & Co.
This claim has been already considered touching the features in which it differs from all other claims. Another fatal objection exists to its allowance. As already stated, the notice of claim of lien was filed March 23, 1908, with the president of the board of education and with the treasurer of the borough of Swedesboro. Suit was brought in this court to enforce the lien by bill filed June 20, 1908. No notice of the pendency of the suit was filed by claimant at any time. The first suit in which a notice of pendency was filed was that of claimant Joseph D. Horner. That suit was brought by Horner by bill filed August 6, 1908, and on August 12, 1908, a notice of the pendency of the Horner suit was filed by Horner with the custodian of school moneys. The Horner suit made Hazard & Co. a defendant, and the notice of pendency of the suit which was filed named Hazard & Co. as a defendant it will thus be observed that no notice of the pendency of the Hazard & Co. suit was filed by any one within 90 days from the date of the filing of the notice of claim of lien by Hazard & Co. The lien was therefore lost by reason of no notice of the pendency of the suit being filed with the financial officer within the period named in the fourth section of the act. It is urged that, as the solicitor of the school district acknowledged service of the subpcena issued by Hazard & Co. within the 90 days referred to, sufficient notice of the pendency of the suit was imparted to the school district. This contention cannot prevail. The statute requires a notice of the pendency of the action to be filed with the financial officer of the school district. This is a special and distinct statutory requirement. The service of a subpcena on the district, or the acknowledgment of service by its solicitor, apprises the district of the suit, but does not necessarily apprise the financial officer, who is charged with the duty of keeping a lien docket; of the pendency of the suit.
Claims of James J. Davidson.
Davidson has two claims; one for bricks supplied to the contractor, the other for sand supplied to a subcontractor. Notices of claims of lien were first filed with the president of the board and with the district clerk; the former, March 23, 1908, and the latter, March 24, 1908. July 7, 1908, these notices were refiled by filing them with the president and with the custodian. As already stated, claimant Horner brought suit August 6, 1908, and filed a notice of the pendency of his, suit with the custodian August 12, 1908. In the Horner suit Davidson was made defendant, and the bill specifically set forth that Davidson claimed two liens by reason of notices of claims of liens filed as above set forth. The notice of suit filed by claimant Horner also named Davidson as one of the defendants. To this bill of Horner Davidson filed an answer, in which he alleged that by virtue of the notices referred to in the bill he claimed a lien to the amount named in the notices. Under the rule laid downin the National Fire Proofing Case, already referred to, Davidson was not required to Ming a separate suit in his own behalf, when brought into court in the manner stated in the Horner suit, and was not required to file with the financial officer a separate notice of the pendency of his action. The Davidson liens must, in consequence, be allowed. On August 4, 1908, Davidson refiled similar notices of claims of liens on all the officers of the school district, and on October 2, 1908, filed an independent suit based on all the filings herein referred to. This was, however, both unnecessary and harmless.
Claims of Louis Dietrich.
Louis Dietrich was a subcontractor. There is due to him $1,449.50. This includes items which were supplied by Louis P. Mayer to Dietrich, and used in the building, to the amount of $399.05. Mayer subsequently filed a notice of claim of lien in his own behalf for the $399.05. As the Mayer items were properly included in the Dietrich claims, the separate claim of Mayer need not be considered. Dietrich's notices of claim of lien were first filed March 23, and 24, 1908, with the president of the board and With the district clerk, respectively. Similar notices were refiled July 10, 1908, with the district clerk, and July 11, 1908, with the president of the board. The subsequent Horner suit made Dietrich a defendant, and the Horner notice of pendency of suit named Dietrich as a defendant. Dietrich answered and asserted his claim in the Horner suit. This places the Dietrich claim in the same situation as that of Davidson, and the claim must be allowed to the amount of $1,449.50, with interest. Dietrich refiled similar notices with all of the officers of the district on August 17, 1908, and on October 2, 1908, filed an independent suit in his own behalf. This suit was also unnecessary.
Claim of Joseph D. Horner.
No objection exists to this claim. The filing of the notices of claim of lien was consummated by service on the custodian July 16, 1908. As already stated, suit was filed August 6, 1908, and notice of pendency of the suit was filed with the custodian August 12, 1908. This claim must be allowed.
Claim of Thomas P. Ward.
This claim was filed December 7, 1908. This was subsequent to the date when suit was brought by Horner, and when notice of pendency of suit was filed by him. No notice of pendency of suit has at any time been filed by Ward, and no notice of pendency of any suit in which Ward is named or is in any way referred to has at any time been filed. This is fatal to the Ward claim. The statute distinctly requires a notice of the pendency of the action to be filed with the financial officer, and no notice of that nature has at any time reached the financial officer which has apprised that officer of the pendency of any suit for the enforcement of the Ward claim. A subsequent notice of pendency of suit was filed with the financial officer by claimant Warner, but that notice did not name Ward. The funds would, however, be insufficient to reach this claim, even if it should be allowed.
Claim of Charles Warner & Co.
No objection is made to this claim. Notices of claims of lien were duly filed December 10, 1908. Suit was brought February 6, 1909, and notice of pendency of the suit was duly filed February 8, 1909. The claim must be allowed.
A decree will be advised directing the defendant school district to apply the money in its hands to the payment of the following claims in the following order, so far as the money is sufficient for that purpose:
| James J. Davidson | $ 772 32 and interest |
| Louis Dietrich | 1449 50 " |
| Joseph D. Horner | 191 34 " " |
| Charles Warner & Co | 968 36 " " |