
    The People, Resp’ts, v. John Belknap, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    Game law—Action eob penalties.
    An action to recover penalties under the game laws cannot be maintained in the name of the people where the pleadings do not show authority from the proper officer to use the name of the people as a party plaintiff. There is no presumption that any officer authorized an action in which his name does not appear and his authority is not claimed.
    Appeal from a judgment entered upon a verdict of the jury at St. Lawrence circuit.
    The action was to recover several penalties of twenty-five dollars each for violating the laws for the protection of fish. The verdict was for $200. The summons and complaint were not signed by any district attorney and there was no allegation or claim that the action had been commenced under the direction of any fish or game protector or other officer.
    
      Whitney & Whitney, for app’lt; B. F. Waterman, for resp’ts.
   Landon, J.

The defendant incurred the penalties to the amount of the verdict The point which he raised by his answer and motions for the dismissal of the complaint is that this suit against him in the name of the people of the state of Hew York as plaintiff was not shown by the complaint or otherwise to have been brought under any statutory authority, and that without such authority and a compliance with it the people have no capacity to sue, and no attorney or individual has the right to use their name as party plaintiff. Heither the complaint nor the evidence showed by what authority the people were made plaintiff.

Undoubtedly the people of the state of Hew York have the capacity to sue, 1, where enabled to do so by statute ; 2, where the property or pecuniary rights vested in the people of the state are involved. But in either case such a suit must be brought by some officer or person duly authorized by law to use the name of the people as a party plaintiff. As was said in People v. Ingersoll, 58 N. Y., at page 17 : “ Such a committal of power should be the act of the legislature, who can hedge it about with all necessary safeguards.” Again, “ Whenever the legislature, by statutory enactment, has conferred upon státe officers or public bodies authority to represent the body of the people in the exercise of any prerogative right, no question can arise, for in those matters, except as restrained by the constitution, the legislature is supreme.” See People v. Fields, 58 N. Y., 491; People v. Booth, 32 id., 397. Following the Ingersoll and Fields cases, chap. 49, Laws 1875, New Code Civ. Pro., §§ 1969, et seq., conferred upon the people of the state the right to bring such actions as were defeated in those cases, and conferred upon the attorney-general the power to bring them. The Code Civ. Pro., §§ 1893-4 provides that when a penalty is given by statute to an individual he can sue for it in his own name. When the penalty is given to the people, the attorney-general or district attorney must bring the action. Id., § 1962. These general provisions do not supersede special provisions of the statute authorizing actions for penalties in special cases, but they indicate the policy of the state, that no one shall use the name of the people of the state as a party plaintiff except in pursuance of some enabling law.

It is urged that this is not a question of the capacity of the people of the state to sue, but one of authority. But the people of the state are in this respect unlike an individual or domestic corporation. An individual not laboring under disability has a capacity to sue in whatever action he chooses to bring in his own name, however unsound his cause of action may be. So of a domestic corporation. But the people have no such general capacity. They have no capacity to sue for penalties except as authorized by law, and not then except through the officer or person authorized to bring the suit. If the proper agency is absent, the capacity is absent In fact the people as a body aggregate under a constituted government are practically in ward, the public officers being their guardians. The people, strictly speaking, have no capacity to use their own name; the proper officers use it as the law permits. Hence the name of the people as party plaintiff in an action brought by an unauthorized attorney simply as “ plaintiff’s attorney,” is the name of a party without capacity to sue in that suit, and without capacity to sue for the penalities therein specified, except upon the condition precedent lying at the foundation of its capacity, namely, that it shall be brought into court by the proper agent of the law. But whether the defect is one of capacity or of authority, this action, if either defect exists, is not maintainable. If without authority, the action rests upon usurpation, and the defendant is punished in the name of the people, when they have not moved against him.

The penalties in question were incurred under £§ 23, 24, chap. 534, Laws 1879. Section 23 was amended by chap. 127, Laws 1884, and § 24 by chap. 11, Laws 1886. Section 33 of the act of 1879 provided that, All penalties imposed by this act may be recovered, with costs of suit, by any person in his own name, and the district attorney was also authorized to bring actions for their recovery in the name of the people. We have examined all the statutes subsequently enacted to which we have been cited, especially chap. 591, Laws of 1880, and chap. 817, Laws of 1883, the provisions of which relative to the bringing of actions were expressly repealed by § 10, chap. 577, Laws 1888; also chap. 429, Laws 1886. Chapter 577, Laws 1888, makes it the duty of the game and fish protectors to enforce the laws of the state for the protection of game and fish. They are authorized to direct the commencement of suits for the purpose.

Sec. 3. “ Such suits shall be commenced on the order of any game and fish protector, in the name of the people, by any district attorney where the offense shall be alleged to have been committed, or by the district attorney of an adjoining county. * * * If it shall appear in any case that the business of the office of the district attorney of any county where suits may be thus commenced is so pressing that the district attorney cannot give to such suits prompt and necessary attention, the game and fish protector having authority to direct the prosecution may, with the approval of the chief game and fish protector, employ other counsel in the same county to commence and conduct such suits to termination.” It may be that under § 2, chap. 429, Laws 1886, game constables, constables, sheriffs, and deputy sheriffs have the same powers in this respect as game protectors.

As the law stands, an individual may bring the suit in his own name, and of course at his own expense. District attorneys may bring the suits in the name of the people, either upon their own motion or upon the direction of the proper officer. Counsel other than the district attorney may, in the exceptional cases mentioned in chap. 577, Laws 1888, bring such actions in the name of the people. But no presumption can be entertained that this action was authorized by the proper officer. We cannot presume that any officer authorized an action in which his name does not appear and his authority is not claimed.

This is a penal action, and the statutes authorizing it must be construed and pursued strictly. As the record stands, the case never had any lawful existence, and of course could not result in a lawful judgment against the defendant. Seward v. Beach, 29 Barb., 239.

Judgment reversed, with costs.

Learned, P. J., and Mayham, J., concur.  