
    WILBERT F. JUSTICE v. THE TOWNSHIP COMMITTEE OF LOGAN TOWNSHIP, IN THE COUNTY OF GLOUCESTER.
    Submitted March 24, 1904
    Decided June 13, 1904.
    
      Mandamus, will not lie to compel the doing of an act which would be a violation of the law.
    On rule to show cause why a mandamus should not issue.
    Before Justices Van Syckel and Fort.
    For the application, J ohn F. Earned.
    
    
      Contra, Samuel II. Picharás.
    
   The opinion of the court was delivered by

Fort, J.

It is the duty of the several townships of this state to repair the highways within their respective limits, and for failure to so do indictment will lie. State v. Hegaman, 1 Gr. 314.

The repair of highways is a duty enjoined by statute. Gen. Stat., p. 2813, §§ 37, 38, 39.

For many years the duty of caring for the highways in townships in this state was cast upon the overseers of the roads, but now, by statute, that duty is devolved upon the township committee. Pamph. L. 1891, p. 137; Gen. Stat., p. 2835, §§ 144, 145.

But iu doing the work of repairing the highways, the township committee may only do such work as can be done with the funds raised, or authorized to be raised, for that purpose, Gen. Stab., p. 2835, §§ 146, 147, 148.

The application before us is for a mandamus to compel the township committee of Logan township, in the county of Gloucester, to put a certain public road and causeway in repair.

The proof establishes that the township has no funds in hand raised, or authorized to be raised, by taxation, to do the work. It is not claimed that there is power to borrow money for this purpose.

The cost of doing what the petitioner seeks to have done is estimated in the proof at $11,000, or thereabouts. The balance of the funds appropriated for that purpose in the hands of the committee is; admittedly, $5.14, being the amount left of an appropriation of $1,071.05 voted for the-care of roads at the last annual township meeting.

We are therefore asked to mandamus the township committee to do an act which would cause them to exceed their appropriation, which is made a criminal offence by the act respecting crimes. Pamph. L. 1898, p. 803, § 31.

In addition to that, any contract which they might malee under the authority to make contracts for the care of roads, being in excess of moneys appropriated for that purpose, would also- be void. Atlantic City Water Co. v. Read, 21 Vroom 665.

A mandamus will not lie to compel a violation of the law. 2 Spell. Extr. Rem., § 1378.

The mandamus in this case is denied and the rule to show cause discharged.  