Manchester and Hull, Overseers of the Poor, &c., against Herrington

Manchester and Hull, Overseers of the Poor, &c., against Herrington. Sections 15 and 19 of title 9, ch. 20, part 1 of the Revised Statutes, imposing a penalty for selling intoxicating liquors without a license, and authorizing the overseers of the poor in each town to sue for and recover such penalty, were not repealed by the 5th section of the excise act of 1845 in towns which should vote under the provisions of the last mentioned act not to grant licenses. The whole period of a term or circuit is regarded as but one day, and any recovery or other action had therein will be held to relate to, and to have been had at, the first day of the circuit or term. Where, therefore, the term of office of one of the two overseers of the poor, plaintiffs, expired, and his successor was elected and qualified, after the commencement of the circuit at which the cause was tried, but before the trial, it was Held, that this was no ground of nonsuit, nor any objection to a recovery in the name of the plaintiffs upon the record. Held, further, that under 2 R. S., 474, § 100, providing against the abatement or discontinuance of suits by or against certain public officers from their removal or resignation, or the expiration of their term of office, it is optional with the parties authorized to apply for a substitution whether they will make such application or not; and that, until the successor in office or the adverse party apply for a substitution, the suit shall proceed in the names of the original parties. This suit was commenced in March, 1847, in the, names of David Denison and Ray Greene, then overseers of the poor of the town of Berlin, in the county of Rensselaer, to recover various penalties alleged to have been incurred by the defendant, under § 15, title 9, ch. 20, part 1 of the Revised Statutes." The declaration was framed in debt, pursuant to the provisions of § 10, title 6, ch. 8, part 3 of the Revised Statutes, and contained a number of counts, alleging the indebtedness .as of the-19th of March, 1847, each count concluding with a demand of $25, “ according to the provisions of § 15, title 9, ch. 20, part 1 of the Revised Statutes, entitled ‘ Of excise, and the regulation of taverns and groceries.’ ” The defendant pleaded: 1. Nihil debet; 2. That on the 19th day of May, 1846, the electors of the town of Berlin determined that no licenses for the sale of intoxicating liquors should be granted in said town, pursuant to the provisions of the act entitled “ An act relating to excise, and to licensing retailers of intoxicating liquors,” passed May 14th, 1845, and the act amending the same, passed February 16th, 1846. To this special plea the plaintiffs demurred, specifying several causes of demurrer which it is unnecessary to notice, because the plea, if defective at all, was defective in substance. The defendant joined in demurrer. The demurrer was decided at a term of the court held in June, 1848, in favor of the plaintiffs ; and at the same term Rodman Thomas and Daniel Babcock applied to the court to be substituted as plaintiffs in the suit, alleging that they had been elected overseers in place of Denison and Greene, whose term of service had expired, and the application was granted. It appeared from the bill of exceptions that the issue upon the plea of nil debet came on to be tried at the Rensselaer circuit in April, 1849 ; and upon the trial the plaintiffs proved enough to entitle them to a recovery for three penalties of $25 each, provided they were entitled to recover at all. On the part of the defendant it was proved that, after tne commencement of the circuit at which the cause was tried, and before- the trial, the term of office of Rodman Thomas, one of the plaintiffs upon the record, had expired, and William Taylor had been elected in his place, and had duly qualified as such. It was then admitted that an election had been held in the town of Berlin pursuant to the provisions of the act of 1845, and' that the decision had been against licenses by a large majority. The defendant thereupon moved for a nonsuit upon three grounds: 1. That the section of the Revised Statutes, for a violation of which the action was brought, was virtually repealed by the law of 1845, in respect to towns which had voted “ no license,” and that actions for penalties for selling liquors without license in such towns must be founded and could only be maintained upon § 5 of the act of 1845. 2. That while the law of 1845 continued in force, the overseers of the poor, in towns where a majority had voted “no license,” had no authority to sue for penalties for selling liquor by retail. 3. That there could be no recovery by the plaintiffs upon the record, because the term of office of one of them had expired, and his place had been filled by another. The circuit judge (Willard) denied the motion for a nonsuit, to which decision the counsel for the defendant excepted, and a verdict was found for the plaintiffs for the sum of $7-5. The record shows that the ruling of the circuit judge was sustained by the supreme court in the third district, and judgment was rendered for the plaintiffs, upon the verdict, for $291.74, damages and costs. But before the rendition of the judgment, and at the same term, the present plaintiffs, Manchester and Hull, applied to be substituted as plaintiffs, alleging that the term of office of the then plaintiffs upon the record, Babcock and Thomas, had expired, and that they the said Manchester and Hull had been elected in their places; and the application was granted. After judgment the defendant appealed to this court. Jacob Holmes for the appellant. A. B. Olin for the respondents. [MAJORITY — Selden, J.,] Selden, J., delivered the unanimous opinion of the court. I am unable to discover any plausible reason for contending that the section of the Revised Statutes upon which this action is founded was repealed or suspended by the act of 1845. Section 9 of the latter act repeals all laws conflicting with its provisions: The only section of this act with which it can be claimed that the section of the Revised Statutes in question in any way conflicts is the 5th, which declares that whenever any town shall determine, pursuant to the provisions of that act, that no license shall be granted in such town, whoever shall sell by retail, &c., within the town, “ shall be liable to all the penalties imposed by title 9 of part 1, ch. 20 of the Revised Statutes,” &c. Does this clause repeal the statute referred to in it? On the contrary it perpetuates it. It is the very reverse of .a repeal. It is an express declaration that the obligation and force of the former statute should be in no way impaired by the new enactment, even in towns which should vote against licenses. The reason given why the law of 1845 should operate as a repeal or suspension of the former law, in towns deciding against licensing, is, that otherwise persons violating the law would be subject to two penalties for the sanie offence. But it is clear that no such consequence would follow from holding that the provisions of the Revised Statutes in question continued in force. Section 5 of the act of 1845 imposes no new penalty. It merely declares that notwithstanding a town should, pursuant to its provisions, vote against licenses, the statute, imposing penalties for selling spiritous liquors by retail, should still continue in force in such town. The object of this section seems to have been' to repel, by a legislative declaration, the conclusion that a penalty for selling “ without having a license ” could not be collected in a town in which no license could be obtained. Instead of being intended to repeal the section of the Revised Statutes giving the penalty, its obvious design was to take away a possible defence to actions brought to recover that penalty; and such no doubt is its effect. • The next objection to the recovery is that the action is not properly brought in the name of the overseers of the poor. As the act of 1845 does not expressly authorize the overseers of the poor to sue for any penalties accruing under it, it is claimed that the action can only be brought by the attorney-general. This objection, like the one just considered, rests upon the assumption that § 5 of the act of 1845 itself gives the penalty, an idea which has already been shown to be unfounded. Overseers of the poor are expressly authorized to sue for penalties incurred under the provisions of the Revised Statutes upon which this action is brought (R. S., § 19, title 9, ch. 20, part 1), and their right is ako recognized by $ 7 of the act of 1845, which provides that, “ In case the overseers of the poor shall neglect for ten days to prosecute for any penalty provided by title 9, part 1, ch. 20 of the Revised Statutes, any other person may prosecute,” &c. The answer to the previous objection, therefore, is a conclusive answer to this. The only remaining objection is that the term of office of Rodman Thomas, one of the plaintiffs upon the record at the time of the trial, had expired and another had been elected in his place. It is expressly provided by a section of the Revised Statutes that “ No suit commenced by or against any officers named in this article (overseers of the poor being of the number) shall be abated or discontinued by the death of such officers, their removal from or resignation of their offices, or the expiration of their term of office, but the court in which any such action shall be pending shall substitute the names of the successors in such office, upon the application of such successors or of the adverse party.” (2 R. S., 474, § 100.) It has been held by the supreme court, in regard to trustees of a school district, who are also within this section, that unless the successors in office, or the adverse party, apply for a substitution, the suit should proceed in the names of the original parties. (Colegrove v. Breed, 2 Denio, 125.) It is true that case was in a justice’s court, where a substitution could not have been compelled; but I do not see that this affects the principle. A substitution might have been had in that court on the application of the successors in office of the trustees who were' parties. The case seems to have been put upon the ground that, in all cases falling within the provisions of the section in question, it is optional with the parties authorized to apply for a substitution whether they will make such application or not; and that if they do not apply, the case may continue to be prosecuted by or against the original parties. I suppose this to be the true construction of the statute. But aside from this, it is a perfect answer to this objection that the election of the new overseer in place of Thomas occurred after the commencement of the circuit. It is a well settled doctrine of the common law that the whole period of a term or circuit is looked upon as but a single day, and everything which is done at a circuit or term is regarded as done upon the first day. This doctrine has been, recognized by several cases in our own courts. (Bennett v. Davis, 3 Cow., 68; Griswold v. Stewart, 4 Cow., 457; Nichols v. Chapman, 9 Wend., 452.) The courts in England carried the principle so far as to hold that the statute of 17 Charles II., ch, 8, which enacted that the death of either party after verdict should not be alleged for error, applied to a case where the defendant had died on the first day of the sitting, and before the trial, in fact, of the cause. (1 Salk., 8; Jacobs v. Miniconi, 7 Term R., 31; 3 Bos. & Pull., 549.) Our statute, however, has guarded against such a construction, in the case of a defendant who dies before verdict, by an express provision. (2 R. S., 387, § 5.) But I see no objection to applying the rale to a case like this, where one of two plaintiffs, suing in an official character, either dies or is superseded in office after the commencement of a term at which the cause is tried. The rale would be remedial in its operation, and could not by possibility work any evil. It is precisely one of those cases to which the rule, that every judicial act done at a sitting or term is to be regarded as done upon the first day of the term, was intended to apply. Upon this ground, then, as well as that before noticed, I should feel bound to overrule the objection under consideration. This view disposes of the demurrer as well as of the questions raised upon the bilí of exceptions. The judgment of the supreme court must therefore be affirmed. Judgment affirmed.