People v. Deming

| New York Court of Common Pleas | Jan 15, 1857

Beady, J. —

The justice dismissed the complaint, upon the ground that the action should have been commenced in the name of the master warden of the port of New York; and although a variety of questions have been elaborately discussed, it is only necessary, for the purpose of determining this appeal, to pass upon the correctness of the judgment pronounced by the justice, for the reason assigned by him. It has not been considered necessary to present a review of the various statutes referred to in the arguments submitted, for the reasons Avhich will be stated. Leaving the earlier legislative enactments, and commencing with the act of 1880, will give us all that is requisite to the investigation of the question involved. The majority of the acts are amendatory of preceding acts, and such is the fact in relation to the act of 1880, which is designated “ An act to amend the act passed February 19, 1819, relative to the port wardens, harbor masters and pilots of the port of New York.” It contains no repealing clause, but, by section 2 provides that, “ if any person other than a branch or licensed pilot shall pilot for any other person any vessel of any description through the East River, commonly called Ilell Gate, or board such vessel for that purpose, he shall forfeit and-pay the sum of thirty dollars for every such offence, to be sued for and recovered in the name of the master warden of the port of New York;” and then directs that, when so recovered, it shall be deposited in the savings bank, and constitute a charitable fund, to be disposed of for the benefit of indigent widows and orphan children of deceased East River pilots, under the direction of the board of wardens.

Here, then, is the penalty to be recovered, the person in «'hose name it shall be sued ibr, and the disposition to be made of it when recovered, expressly provided for beyond all questioner peradventure. Then follows the act of 1832, the tenth section of which contains the same penalty for the same cause, but is silent as to the person by whom it shall be sued for; yet, in the eleventh section, we find that the half pilotage authorized by law to be collected, when a pilot shall be refused, shall be sued for and recovered in the name of the master warden of (he port of New York — a provision which was omitted in the act of 1830, section 3, relating to. that subject, providing only that it should bopaid over to the master warden. Thus we perceive that the name in which the penalty of thirty dollars shall be sued for is omitted in section ten of the act of 1832,' and supplied by section eleven as to half pilotage, which was omitted in act of 1830; and, by section twelve, all such acts or parts of acts as are inconsistent with the provisions of the act are declared to be repealed. Then follows the act of 1841, amendatory of the act of 1832, which, by the sixth section, repeals such parts of the sixth, seventh, ninth and. tenth sections of the act amended as are inconsistent with it. There is nothing in this act which affects the penalty of thirty dollars above mentioned, and it remains undisturbed by this statute in any manner whatever.

Then follows the act of 1847, under which the penalty in this action is prosecuted. The ninth section provides for the penalty of $30, for the same cause stated in the act of 1830, but omits to provide in whose name it shall be sued for, and to what purpose, it shall be appropriated when collected. The eleventh section repeals all such acts, or part of acts, as are inconsistent with tbo provisions of the act; and upon these two sections, in connection with the other statutes referred to, depends the question under review.

A mere change of phraseology in a revision of the statute will not be deemed to alter the law, unless it evidently appears that such was the intention of the legislature. Ex parte Brown, 21 Wend. 316" court="N.Y. Sup. Ct." date_filed="1839-07-15" href="https://app.midpage.ai/document/in-re-brown-5515324?utm_source=webapp" opinion_id="5515324">21 Wend. 316 ; In the matter of Theriat v. Hart, 2 Hill, 380, and note b.

In construing a statute, the intention of the legislature should followed, wherever it can be discovered, although the construction adopted seem contrary to the letter of the statute. Griswold v. National Ins. Co., 3 Cow. 89" court="N.Y. Sup. Ct." date_filed="1824-08-15" href="https://app.midpage.ai/document/jackson-ex-dem-scofield-v-collins-5464221?utm_source=webapp" opinion_id="5464221">3 Cow. 89 ; 15 J. R. 380 ; Crocker v. Crane, 21 Wend. 211" court="N.Y. Sup. Ct." date_filed="1839-05-15" href="https://app.midpage.ai/document/crocker-v-crane-5515302?utm_source=webapp" opinion_id="5515302">21 Wend. 211.

■ Tire invariable rule of construction, in respect to the repealing of statutes by implication, is, that tbeearliest act remains in force, unless the two are manifestly inconsistent with and repugnant to each other, or unless in the latest act some express notice is taken of the former, plainly indicating an intention to abrogate it. Bowen v. Lease, 5 Hill, 225. Hence a repeal by implication is not favored; on the contrary, courts are bound to uphold the prior law, if the two acts may well subsist together. Dr. Foster’s case, 11 Cow. 63 ; Weston’s case, Dyer, 347 ; 10 Mod. 118 ; Dac. Abr. statute (D); Dwarris, 673 to 675. Applying these principles to the case in band, we have little difficulty in arriving at the conclusion that the justice was right, and that the acdon should have been brought in the name of the master warden of the port of New York. It must be borne in mind, that by the act of 1830, the action is to be brought in the name of the master warden. The tenth section of the act of 1832, which relates to the same subject and penalty, omits any provision on the subject of the person in, -whose name the suit is to be brought, and there is therefore nothing on that subject in the act, of 1830 inconsistent with it. The same remark applies to the act of 1841, wbicb contains nothing on tbe subject, and tbe same to tbe act of 1847, wbicb preserves the penalty but does not provide in whose name tbe action shall or may be brought. There is nothing,, therefore, in the act of 1847 inconsistent with that part of tbe act of 1830, wbicb gives tbe right of action to the master port war-’' den. The two statutes shall stand together, and both have effect:, if possible, for tbe law does not favor repeals by implication, an&_ all acts in pari materia should be taken together as if they were •one law. Bowen v. Lease, supra ; McCartee v. Orphan Asylum, 9 Cow. 347. There was no repeal in express terms of that part. .of the act of 1830, and, if repealed at all, it was repealed by im--plication only, wbicb tbe law does not favor, as we have seen.: In the repealing clauses of the various .acts to wbicb referei^ev has been made, such acts and parts of acts only as are inconsistent, are affected, and this has an important bearing in considering the: intention of the legislature. That intention is manifest in the-phraseology adopted, and tbe repeals of parts of acts not inconsistent with the ,act passed cannot be interpreted to repeal parts* of acts which are perfectly consistent with it, and the intention-must prevail, ás we have seen, even if such a construction must, result, which is not the ease here, as would seem contrary to the-letter of the statute. Crocker v. Crane, supra. Because a thing within the intention is as much within the statute as if it were-within the letter, and a thing within the letter is not within the statute if contrary to tbe intention of it. The People v. The Utica Ins. Co., 15 J. R. 358. We think, therefore, that the act of 1830,-relative to the name in which the penalty should be prosecuted,* remains in full force and effect; that the justice was right, and that the judgment of dismissal must be affirmed.

Judgment affirmed.