Board of Commissioners of Public Charities & Correction v. McGurrin

| New York Court of Common Pleas | Mar 6, 1876

Ohables P. Daly, Chief Justice.

The commissioners of charities and corrections are, in this city, the overseers of the poor, discharging the same general duties, in that respect, as the overseers of the poor in other counties. The act of 1813 declared that the commissioners of the almshouse should be the overseers of the poor in this city, and be subject to the same duties and penalties which the overseers of the respective towns in the State had or were subject to (Laws of 1813, p. 430, § 246).

The authority and powers of the commissioners of the almshouse were transferred to the governors of the almshouse (Laws of 1849, p. 367). In 1860 the almshouse department was abolished and the department of public charities and corrections created, the commissioners of which, it is manifest, from the (statute making the change, were to exercise the same general powers as overseers of the poor that the previous body did (Laws of 1860, c. 510, §§ 4 to 24).

By the 22d section of the act of 1857, the penalties imposed by the act were to be sued for and recovered in the name of the board of commissioners of excise created by the act (Laws of 1857, c. 628, § 22). By the metropolitan police act of 1866, •the commissioners of the board of health of the city were constituted the hoard of excise within the metropolitan police district, excluding the county of Westchester. How far beyond this this act may have affected the act of -1857, as respects this city, it is not material to inquire, as it was superseded by the provisions of the act of 1870 (Laws of 1870, c. 175), creating a board of excise for the city, consisting of three persons, appointed by the mayor, and which as amended (Laws of 1873, c. 249), created a board of commissioners of excise in each of the cities, incorporated villages and towns of the State.

In the same year (1873) the 22d section of the act of 1857, giving the right to sue for the penalties to the commissioners of excise, was amended by declaring that they should be sued ior in the name of the overseers of the poor of the town where the penalty was incurred.

Up to this period no distinction was made between this city and the other parts of the State in respect to the enforcement of the penalties provided for in the acts for the suppression of intemperance and the regulation of the sale of intoxicating liquors, and in my opinion there was no intention on the part of the legislature to make any by the passage of this amendment in 1873. Up to that time the penalties incurred in this city could be sued for by the commissioners of excise, the legislation affecting this city relating simply to how the board or commissioners of excise should be constituted. The change made was clearly intended to be a general one; to give the right to sue for such penalties to the overseers of the poor, instead of, as theretofore, to the board or commissioners of excise; .and there is nothing to warrant the construction that the intention was, by this change, to provide that no such penalties should be enforced in this city, which would be the effect of holding as the judge below held in sustaining this demurrer.

The 22d section of the act of 1857 gave the power to sue for such penalties only to the boards of commissioners of excise, that act, in a previous section, having provided for the appointment of such a board in every county of' the State, including .the city and county of New York; and when the 22d section was amended in 1873, the right of the board of commissioners ■of excise to sue for such penalties was taken away, as well within the city and county of New York as in the other counties of the State; and if there are no public officers here corresponding to what is denominated in the amendatory statutes, overseers of the poor of towns where the penalty was incurred, then, as I have said, no such penalty can be enforced in this city. It is argued that in amending this section of the act of 1857, the legislature have provided only for those who may sue in towns, and have omitted to provide for any other cases, a construction that would exempt all the cities of the State, which, in my judgment, was not the intention of the legislature.

We have, and have always had, in this city, overseers of the poor, under whatever names or organization they have existed. The plaintiffs, the commissioners of charities and correction, are now the overseers of the poor, having succeeded to the same powers and duties as the old commissioners of the almshouse. It does not follow that because this amendment designates overseers of the town where the penalty was incurred, that •cities were not intended to be included. “ Every borough or city,” says Tomlins, “is a town” (Tom. Law. Diet. Town). The greater necessarily includes the less, for a city begins as a village, expands into á town, and afterwards becomes a city, by incorporation or otherwise, for there are cities that were never incorporated (Coke Litt. 109, with Hargrave’s notes,. 2, 3). “ The word town” Blackstone says, “has, by the alteration of times and language, become a generical term, comprehending under it the several species of cities, boroughs, &e.,” and adds, “a city is a town incorporated” (1 Bl. Com. 114). In common parlance the word is frequently applied to cities, as leaving town, coming to town, out of town, &c. We have, in this State, the political division of towns, cities and incorporated villages, and that that particular political division is what is meant by the word town, may, in a given case, be apparent from the purpose of the statute. But that is not the case here. This was an amendment of a section of a statute applying to the whole State. The object in the amendment of it was evidently not to exclude cities from its operation, but to change the manner of suing for the penalties. All the other provisions apply to the cities as well as to the other parts of the State, and it is very evident that the intention was not that all the other portions of the act should apply to this and other cities, except the enforcement of the penalties, the most important part of a statute-of this description, as the penalty and its enforcement is the-means relied upon to secure obedience to it, and make it effective. Where the law enacted was meant to .have effect only within those political divisions of the State denominated towns, it will appear from the nature of the act and its general context. But where it is intended to have effect throughout the whole State, the word town may be read as meaning city, without-straining the meaning of the word, or doing any violence to the language of the act. The order below, in my opinion, should be reversed.

Larremore, J., concurred ; Eobinson, J., not voting.

Order reversed.