Two separate suits are pending in the Law and Chancery Divisions of this court respectively. They have been consolidated.
The suit in the Law Division is brought by the Commissioners of Fire District No. 12 in the Township of Woodbridge against the defendant, William Ziegenbalg, assessor of taxes of the Township of Woodbridge, to compel the tax assessor to perform his alleged statutory duties as imposed upon him by R.S. 40:151-28, namely, to assess the sum of $2,400 voted at a special meeting of the voters of the 12th Fire District of Woodbridge Township on September 18, 1950, to be used to construct a fire house in the 12th Fire District.
The defendant asserted two defenses. First, that the meeting of September 18, 1950, was not conducted as required
by statute; second, that the fire district was abolished by resolution adopted by the township committee on February 15, 1951, and consequently is not in existence and could not receive any sums so appropriated.
The plaintiff in reply contends that the September 18, 1950, meeting was valid and charges that the meeting of February 15, 1951, when the abolition resolution was passed was, in fact, invalid and not in accordance with the requirement of the statute, and further says that even if such abolition resolution is valid, it can have no retroactive effect to nullify the statutory duty previously imposed upon the assessor to assess the moneys appropriated at the September 18, 1950, meeting and now essential to pay debts incurred in the actual construction of the fire house.
The suit in the Chancery Division, relying upon the assumption that the action of the township committee in abolishing Fire District No. 12 is valid, seeks to obtain from the Commissioners of Fire District No. 12, such cash, records, fire apparatus and equipment in the possession of the fire commissioners as of February 15, 1951.
By way of answer and counterclaim to the Chancery Division suit, the validity of the February 15, 1951, abolition resolution is again attacked and denies the duty to surrender the cash and fire apparatus even if the resolution be valid, alleging that the cash is required to pay debts lawfully incurred and commitments made by the fire district prior to February 15, 1951, and (2) that the township has no statutory or other right to the fire apparatus and equipment, and (3) the township committee was never authorized to sue for or recover the aforementioned fire apparatus or equipment.
From this recital, the following questions are involved:
1. Is the resolution appropriating $2,400 to construct a fire house, adopted at the September 18, 1950, special meeting of the voters of Fire District No. 12 valid?
2. Is the resolution abolishing Fire District No. 12, adopted at the February 15, 1951, special meeting of the Township Committee of the Township of Woodbridge, valid?
3. If the February 15, 1951, abolition resolution is valid, does it operate retroactively to nullify the statutory duty imposed on the assessor by the September 18, 1950, meeting, to assess the money then appropriated and now required to pay the debts incurred in the actual construction of the fire house?
4. If the February 15, 1951, abolition resolution is valid, are the fire commissioners under a duty to surrender to the township the cash balance and the fire apparatus in their possession on February 15, 1951?
These suits bring into consideration the statutes concerning the creation, governing and abolishing of fire districts in townships where no fire protection is furnished by the township.
R.S. 40:151-1 to R.S. 40:151-54 sets forth the pertinent statutes involving the general subject of fire districts, their creation, authority and abolition.
R.S. 40:151-1 provides as follows:
"Created by township committee in certain cases; powers
Whenever the township fails to appropriate money or provide means for protection against fire, the township committee upon the application of at least twenty freeholders of any village or district therein, shall set off by metes and bounds such village or part of the township as may be desired, into a fire district, and such village or part of the township so set off shall have all the rights and powers to provide ...