12 N.H. 255 | Superior Court of New Hampshire | 1841
In this case the defendant, among other grounds of defence, relies upon the statute of limitations to a portion of the plaintiff’s claim. His plea is nil debet, but it is well settled that if there be any limitation with respect to the time within which an action on a penal statute is to be brought, the defendant need not plead the matter in defence, but may avail himself of it on the general issue. 13 Pet. Ab. 296, and authorities cited; 3 Stark. Ev. 1129; Bul. N. P. 225; 2 Roll. Ab. 683; 1 Chit. Pl. 481. The same point is directly decided in Moore vs. Smith, 5 Greenl. 490, which was a qui tarn action on a suit for a penalty.
The act limiting suits on penal statutes passed prior to the act on which this suit is founded; but it is a permanent law, applicable to all forfeitures “ upon any penal statutes made, or to be madeand provides that all suits which shall be had, brought, sued or commenced by any person who may lawfully pursue the same, the benefit whereof belongs to him in whole or in part, shall be commenced within one year from the time of committing the offence, and not afterwards.
The provisions of this act are the same as that of 31 Eliz., chap. 5, which has been holden in repeated instances to ex
The statute of limitations, then, is a good defence under the general issue, to that portion of the plaintiff’s claim accruing more than one year prior to the date of his writ. The writ is dated the 6th of July, 1839. That portion of the plaintiff’s claim charging neglect on the defendants from March, 1838, to March, 1839, is within the year, and is not barred by the statute.
There can be but one penalty assessed against any board of selectmen. They have their entire official year to make the provision required, and cannot be guilty of the offence of neglecting their duty in this respect until their year has terminated. Their office expired in March, 1839, four months prior to the suit; and their liability to a forfeiture then became fixed, if they had not complied with the provisions of the statute. Various exceptions are, however, taken on other grounds, against the maintenance of the suit.
The declaration alleges that the defendants neglected to procure for the town a complete set of weights and measures, and a scale beam, similar to those otvned, by the state on the 15th of December, 1797 ; and it is contended that the statute does not require them to procure a similar set of weights and measures, as it is left to the selectmen to procure measures of such materials as the town shall think proper, “ provided the liquid measures are of some kind of metal.”
This is so ; but the statute requires the weights and measures provided by the town to compare with the legal standard, in capacity and weight; and the similarity alleged in the writ need not be regarded as extending to other particulars. It is not necessary that they should be similar in all respects. Besides, the declaration alleges generally that no weights and measures were provided, as is required by the statute. In either point of view we think the declaim:ion sufficient.
The words of the statute are, that !1 the selectmen of every town in this state shall provide one complete set of weights and measures.” Does this mean that they shall once provide a complete set, and that ever afterwards the succeeding boards of selectmen shall be exonerated from all duty on this subject ; or that the selectmen shall at all times provide and keep a complete set of weights and measures, for the uses and purposes named in the act ? It seems to me the latter is altogether the most natural construction.
The act provides, in subsequent sections, that each town at its annual meeting shall choose a sealer of weights and measures, who shall, in May of each year, notify the citizens of the town, by public notice, to bring in their weights and measures, to be compared with the town standard, and sealed ; and such officer is liable in a heavy penalty if he neglects his duty in this respect.
The act also provides that the town standards shall be compared with the county standards, and proved and tried from time to time, at the end of every five years. The intention, then, of the legislature would seem to be, to require the selectmen to provide a set of weights and measures, to meet the other provisions of the act. In other words, that the obligation resting on the selectmen should be permanent and perpetual ; and such is the construction we affix to it.
An exception is also taken, that the selectmen of the town are not bound to the discharge of any duty under the statute, until there has been some action had on the part of the town specifying the material of which the weights and measures shall be constructed.
The duty of providing weights and measures is directly imposed upon the selectmen. The town can direct, if they please, as to the material; but this does not exempt the selectmen from the discharge of their duty. No provision is made rendering the town liable to fine or indictment, if it neglect to act upon the subject; and yet a heavy fine is imposed on the selectmen for neglect on their part. The bur-then is thus shown to rest upon them. They may consult the town, if they please; but if the town do not act, the selectmen must go forward, and discharge their duty, independent of the town.
Such we conceive to be the intention of the act. We have no wish to extend its provisions. We design to construe it strictly, and to give no effect to it beyond what we consider to be its plain and obvious meaning. To such extent, though it is a penal statute, we are bound to construe it. Mr. Justice Buller remarks, in Rex vs. Inhabitants of Hodnett, 1 D. & E. 101, that “it is not true that courts in the exposition of penal statutes are to narrow their construction. We are to look to the words in the first instance ; and when they are plain, we must decide on them ; if they be doubtful, we must then have recourse to the subject matter.” And Mr. Justice Story, in United States vs. Winn, 3 Sumner 209, observes, “ in consulting penal statutes the proper course is to search out and to follow the true intent of the legislature, and to adopt that sense which harmonizes best with the context, and promotes, in the fullest manner, the apparent policy and objects of the legislature.”