6 Cow. 478 | N.Y. Sup. Ct. | 1826
Curia, per
The latter part of the 22d section of the “ act for the support of common schools,” imposes the penalty of 10 dollars upon the clerk, trustees and collector of each school district, who shall neglect the performance of the duties of his office. This section provides, in the first place, “ that every person who shall be duly chosen, or appointed to either of said offices, and shall refuse to serve therein, shall forfeit and pay the sum of $5, &c.; and every person, who being duly chosen or appointed as aforesaid, to serve in any such office, and having accepted thereof, or not declared his refusal to accept, shall neglect the performance of the duties of such office, shall forfeit and pay the sum of $10; to be recovered, &c.” The defendant was elected clerk of the school district in which he resided, and accepted the office; and, for aught that appears, performed its duties generally in a faithful and satisfactory manner. But it appeared, that in the month of December, 1824, he was directed by the trustees to call a special meeting of the district. That on such occasion, he omitted to give notice of the time and place of the meeting, to two or three of the taxable inhabitants of the district; and that omission is the foundation of this action.
The plaintiff took several exceptions to the opinions expressed by the court below, which it is not necessary par^ ticularty to consider; as we are clearly of opinion that it is not a case to which the penalty given by the section in question, was intended to apply.
It is apparent, that the sole object of the 22d section of this act, is to compel the individuals who may be elected, or appointed to the offices of clerk or trustees, or collect- or of any school district, to accept the appointment. It is accordingly provided in the first instance, that any individual who, after having been duly elected or appointed to either of those offices, shall refuse to serve therein, shall forfeit and pay the sum of $5. But it was foreseen that this provision might be evaded, by a nominal acceptance
The 5th section of the act for the assessment and collection of taxes, (2 R. L. 512,) contains a provision very similar to that which we are now considering. It is, that if any assessor shall refuse, or, without being prevented
The 9th section of the act relative to the duties and privileges of towns, (2 R. L. 129,) contains a similar provision in relation to the town officers.
Where it is the intention of the legislature to impose a penalty on an officer for the omission of any particular duty, they use language which is clear and explicit. Thus, in relation to the overseers of highways, (2 R. L. 274, s. 14,) it is provided, “That every overseer of highways, who shall neglect or refuse to warn the people assessed, to work ori the highways, &c., or to collect the moneys that may arise from fines or commutations, or to perform any of the duties and services required by the act, or which may be enjoined on him by the commissioners, &c., shall forfeit for every such neglect or refusal, the sum of $10,” &c. The difference in the phraseology of these acts is very striking ; and, in my judgment, affords strong confirmation of the correctness of the construction we have given to the section of the school act under consideration. The judgment of the court below must be affirmed.
Judgment affirmed.