Harlow v. Young

Howard, J. — It is required by statute, that the selectmen of each town, shall appoint, annually, a sealer of weights and measures, within- the same; and that any selectman, who shall neglect the duties of his office, in that respect, shall forfeit ten dollars for each month’s neglect. R. S., c. 13, §§ 12, 14. It is admitted that the defendant and his associates, as selectmen of the town of Byron, jointly and severally, neglected to make such appointment, for the period [91] of seven months; and this suit is instituted for the forfeiture supposed to have been incurred by such neglect. It is provided by R. S., c. 6, § 62, that “ in no case, shall any officer of any city, town or plantation, incur any punish'ment or penalty, or be made to suffer,in damages, by reason of his official acts or neglects, unless the same shall be unreasonable, corrupt, or wilfully oppressiveprovided, that certain specified neglects to prepare, deposit, and post up the list of voters, or to call meetings for elections, or to cause returns of votes to be made as required by the constitution and laws of this State, or to make the records by law required, shall be deemed unreasonable, unless the contrary appear. As these provisions are in the chapter bearing the title, “ of the regulation of elections,” and under the fourth article, entitled “ penal provisions and regulations, affecting the pui’ity of elections,” it is now urged, in argument for the plaintiff, that they are limited to such official acts and neglects as are mentioned in that chapter. Neither its title, nor the preamble, forms any essential part of an Act of the Legislature. The latter has fallen into disuse with us, and the former can never be regarded as a safe expositor of a law which is plain and positive in its provisions. Mills v. Wilkins, 6 Mod. 62; United States v. Fisher, 2 Cranch. 386; 1 Kent, 460. The R. S., c. 1, § 3, provide that “ the titles of the several chapters, and the abstracts of the several sections, are not to be construed as essential parts of the revised code;” and thus furnish a rule of construction, which is applicable to this case, on this point. The terms of the sixty-second section, before quoted, are general, and apply to all cases, and to all the official acts of every officer of every city, town or plantation, in the State; whether his official duties are connected with elections or otherwise. They are not to be restricted by the title of the Act; and to avoid a forfeiture, they should receive a fair and liberal construction. If standing alone, as a separate enactment, there could be no doubt that they would apply to all [92] cases of official neglects, by the class of officers mentioned ; and as they- stand now, upon the statute, unrestricted by the title, and unconnected with other sections, they are to be construed in the same manner, and by the same rules, as if they constituted an independent enactment. It appears that no treasurer of Byron ever procured, and that the town never had, as standards, the weights and measures required by law. R. S., c. 13, § 8. And it is admitted that the town directed their selectmen not to appoint a sealer of weights and measures. Now, though the n,eglects of other officers furnish no excuse for the non-performance of his duties by the defendant, and although the vote of the town, directing the neglect of duties required by law was unauthorized, and could constitute no justification for the defendant, yet, these facts tend to explain the motives of the selectmen in neglecting to meet the requirements of the statute, in the matter alleged against them. Until the town standards were procured, the appointment of a sealer of weights and measures would be useless; for he could perform no duties officially. While the treasurer of the town neglected his duties, and while his remissness was overlooked or countenanced by the town, the selectmen might well suppose that their action upon the matter would be fruitless. The facts agreed tend to show, and in our opinion, satisfactorily show, that their acts and neglects in this respect, were neither unreasonable, corrupt, nor wilfully oppressive; and by such acts and neglects, the defendant has not incurred a penalty. Plaintiff nonsuit. Shepley, C. J., and Rice, Hathaway and Cutting, J. J., concurred.