People v. Allen

6 Wend. 486 | N.Y. Sup. Ct. | 1831

By the Court,

Mabcy, J.

The right of the plaintiffs to recover depends upon the legality of the organization of the court martial which imposed the fines paid over to the deputy of the sheriff. It is provided by the act “to regulate the militia,” Laws of ISIS, p. 220, §17, that “ the commanding officer of each brigade of infantry shall, on or before the first day of June in every year, appoint a brigade court martial,” &c. The court martial which imposed the fines paid to the deputy of .the sheriff, was not appointed until July. Could the power given to the commandant of brigade to appoint a court martial be exercised after the first day of June 1 The general rule is, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language used by the legislature, shew that the designation of the time was intended as a limitation of the power of the officer. The act regulating sales of real property on an execution, makes it the duty of sheriffs to file a certificate of sale in the clerk’s office in ten days after the sale takes place, yet this omission does not affect the validity of the sale. Jackson, ex dem. Hooker, v. Young, 5 Cowen, 269.

A case bearing more strongly upon the one under consideration is found in 2 Mass. R. 230. The laws of that state regulate the mode of raising money to build and repair district school houses. Assessors are required to assess the tax within thirty days after they are furnished with a certificate of the vote of the district. In the case before that court, it appeared that the assessment was made after the time within which it is directed to be made, and the question was as to the validity of the assessment. Parsons, Ch. J. remarked, that although the assessors are directed to assess the tax within 80 days after the certificate, yet there are no negative words restraining them from making the assessment afterwards. “ The naming of the time must therefore be considered as directory to the assessors, and not as a limitation of their authority.” So it may be said of this case, that as there is nothing in the nature of the power showing that it might not be as effectually exercised after the first of June as before, and as the act giving it contains no prohibition to exercise it after that period, the naming that day was a mere direction to the office'r in relation to the manner of executing his duty. There is nothing in the nature of the power given, or in the manner of giving it, that justifies the inference that the time was mentioned as a limitation. If the power could be exercised after the first of June, the court martial was legally instituted. The money received by the deputy belonged to the plaintiffs, and was paid to him pursuant to law; the defendant is therefore responsible for it.

Judgment for the plaintiffs.