
    Board of Commissioners of Excise of the City of Auburn v. Cary S. Burtis, et al.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    Excise laws—Proper, parties to sue eor penalties for violation of.
    By statute, Laws 1857, chapter 628, the power to sue for violation of the excise law was given to the hoard of commissioners of excise of the different counties. By the amendment thereto, chapter 880, Laws 18'3, penalties were to be sued for by the overseers of the town in which the alleged penalty was incurred. Éy further amendment, Laws 1878, chapter 109, it was provided that the penalties might be sued for and recovered in the name of the overseers of the town or city in which the alleged penalty is incurred, except in such town or cities as have no overseers of the poor, when it was provided that the suit should be in the name of the commissioners of excise. Until 1879 there were overseers of the poor of the city of Auburn. By an act of that year it was provided that the commissioners of charities and police and the mayor ex officio should constitute a board of charities and police of the city of Auburn; and that act also provided that the said board should possess the powers and execute the duties of overseers of the poor in towns. Held, that the act of 1879 abolished the office of overseers of the poor, and that the penalties for v.olations of excise laws should be sued fa’'-by the commissioners of excise.
    Appeal from judgment and order of general term, fifth department, affirming judgment entered upon a verdict in favor of plaintiff at Cayuga circuit.
    
      N. C. Moak, for app’lts; F. D. Wright, for resp’t.
   Earl, J.

This action was commenced to recover penalties for violations of the excise law in the city of Auburn, from the first day of June, 1880, to the first day of June, 1881. The plaintiff recovered, and, the judgment having been affirmed at the general term, the defendants appealed to this court.

The main question to be decided now is whether the action was properly commenced by the plaintiff, or whether it should have been commenced by the board of charities and police of the city of Auburn; and the determination of this question involves the construction and consideration of various statutes.

Erom the incorporation of the city of Auburn in 1848 until 1879, there were overseers of the poor in that city,' possessing the powers and duties of overseers of the poor of the several towns of the state. Laws 1848, chap. 106, § 8, title 4, § 1, title 9, and §§ 1, 7, title ll; Laws 1859, chap. 431, § 6, title 5, and § 1, title 9; Laws 1869, chap. 273, §§ 5, 61, 203, 216. By the act (chap. 53, Laws 1879, § 71 title 7), it was provided that “the commissioners of charities and police, and the mayor ex officio, shall constitute a board of charities and police of the city of Auburn, of which the mayor shall be president.” Section 78 of the same act reads as follows : “The said board shall possess the powers and execute the duties of overseers of the poor in towns, and appoint a superintendent of charities, and a clerk, when necessary, to aid in the discharge of their duties.” By chapter 628 of the Laws of 1857 (§ 22), the power to sue for violations of the excise law was given to the board of com. missioners of excise of the different counties. By chapter 820 of the Laws of 1873 (§ 1), section 22 was amended so as toread as follows: “The penalties imposed by this act, except those piovided for by sections 15 and 19, shall be sued for and recovered in a civil action, hi the manner provided by law for the recovery of penalties, by and in the name of the overseers of the town in which the alleged penalty was incurred, and the amount so recovered, when collected, together with all the costs oí the proceedings for such recovery and collection, shall, within thirty days after such collection, be paid by the officer or party receiving the same to the county treasurer of the county, for the support of the poor or such county, except as is otherwise provided by law.” The same section was again amended by chapter 109 of the Laws of 1818, by providing that the penalties might be sued for and recovered in the name of the overseers of the poor of the town or city in which the alleged penalty is incurred, “except in such towns or cities as have no overseers of the poor, in which case said penalties shall be sued for and recovered by and in the name of the board of commissioners of excise of the town or city aforesaid, and paid over to the treasurer of the county, for the support of the poor of the town or city.”

The claim of the defendants is that, by the charter amendment of 1819, the board of charities and police for the city of Auburn were empowered to execute the duties of overseers of the poor, and that as it was among the duties of overseers of the poor to sue for penalties for violations of the excise law, that duty devolved upon that board. The claim of the plaintiff is that when the office of overseer of the poor was abolished in the city of Auburn, and the board of charities and police was substituted in its place, there was, within the meaning of the act of 1818, no overseer of the poor in the city, and hence that it devolved upon the board of commissioners of excise of the city to sue for these penalties; and we think the latter claim is supported by the best reasons.

After the enactment of chapter 109 of the Laws of 1818, it was the general system, provided for the whole state, that overseers of the poor, wherever they existed in the towns and cities of the state, should sue for and recover the penalties for violations of the excise law, but that, where there were no overseers of the poor, such penalties should be sued for and recovered by and in the name of the commissioners of excise. While such was the law and the system the act of 1819 was passed, and abolished the office of overseer of the poor in the city of Auburn, and there ■ after there was no such office in that city, and the precise exigency existed which devolved upon the commissioners of excise the duty to sue for the penalties. It cannot be supposed that when the legislature devolved upon the new board created, the duties of the office of overseer of the poor, it meant to change the general system provided in the legislation of 1878, and to devolv upon the new board the duty to prosecute for violation of the excise law. The two acts of 1878 and 1879 must be construed together, and must be so construed that they can stand together, and upon such construction the- latter act must be so hmited as not unnecessarily to interfere with the prior act, and the duty which by the general law was imposed upon the board of commissioners of excise cannot be held to be one of the duties devolved upon the new board created for the city.

It cannot be denied that much can be said, and that much has been ably said, in favor of the contention of the defendants upon the question in dispute, but the question is a technical one, having nothing whatever to do with the merits of the case, and we think the wiser and better rule is to hold that the general system provided by the law of 1878 prevails everywhere in the state where, by its terms, it is applicable, unless by some new enactment its provisions have been changed.

Other exceptions, to which our attention was called upon the argument, point out no error, and require no special consideration.

The judgment should be affirmed.

All concur, except Miller, J., absent. 
      
       Affirming 84 Hun, 19.
     