Winchell v. Pond

[200] The opinion of the court was delivered by Davis, J. One of the grounds, on which the motion to dismiss was made, — that is, the not taking a proper recognizance for costs on issuing the writ, — seems not to have been passed upon by the county court; of course it is not before us. The only question is, whether the county court were right in dismissing the action; for the reason that the original writ, which was returnable before a justice of the peace, was made or filled up by the constable of Poultney, who served the same. The motion is founded upon section 26 of chap. 11 of the Revised Statutes,— which enacts, that “no sheriff, or deputy sheriff,” shall be allowed to make any writ, declaration, plea, &c., except in his own case, — declaring all such acts tobe void, and that all such writs and proceedings shall be dismissed. Constables, not being particularly named, it is supposed by the plaintiff’s counsel are not'comprehended within the true spirit and meaning of the statute. Whether so, or not, is the question now to be determined. We attach no importance to the circumstance, that the same officer, who filled the writ, also served it. If served by any other officer, the objection would be equally available. Nor is it a matter of any consequence, that it was presented in the form of a plea in abatement before the magistrate. As mere matter in abatement, if it were such, it came too late, — not being pleaded until after one continuance. If there be any thing in the objection, it is one of substance, and not of form merely, — the statute declaring the process void. In arriving at what a majority of the court deem a correct construction of this statute, it is proper to say farther, that the circumstance, that the former statute on the same subject, superseded by the present revised code, expressly comprehended constables within its prohibition, is not regarded as at all decisive either way. The omission of that word in the present law is susceptible of other explanation, than an intention to exempt that class of officers from its operation. Inadvertence, or a belief that it was not necessary, in every successive section of a statute embodying numerous provisisons, intended to secure a prompt, effectual and impartial service of all process by the various officers entrusted with that duty, to repeat perpetually each class, would afford a satisfactory explanation. Every consideration of policy, applicable to sheriffs and their [201] deputies, in respect to this subject, seems to apply with nearly equal force to constables. Their powers, duties and liabilities are the same, with the exception that their sphere of operation is less extensive, generally, — but co-extensive-with respect tó a large class of precepts, subject to the consent of the towns, respectively, in which they reside. There are peculiar duties, it is true, superadded in relation to the collection of taxes. The same mischiefs, to a considerable extent, would result from their being permitted to combine their appropriate business with that of counsel and attorney. They are essentially incongruous; and every principle of sound policy and expediency requires them to be kept separate and distinct. Upon principles of construction, then, every where recognised, we feel at liberty to disregard the mere letter of the statute, and give it a scope and meaning broad enough to effectuate the beneficial purposes it had in view. If a penalty were the consequence of a disregard of the prohibition, upon principles of construction equally well settled the subject would be entitled to a very different, consideration. For instance, by sect. 21 of the same statute, if any sheriff, or deputy sheriff, shall wilfully neglect, or refuse, to serve or return any lawful writ or precept delivered to him, or make a false return thereon, he shall be subject to pay a fine, not exceeding one hundred dollars, and also to pay to the party aggrieved all damages and costs. So far as the fine is concerned, constables, not being named, could not be subjected to it; but I apprehend they can claim no exemption from responsbility in damages to the party injured. Numerous other provisions, in the same chapter, leave no doubt that they are equally within the spirit and meaning of the law with other officers, though not named. Sect. 10 authorises every sheriff to preserve the peace, suppress riots, tumults, &c.; and sect. 11 says, every sheriff and other officer, in the discharge of the duties indicated in the preceding section, may require suitable aid and assistance. Here the statute itself has applied the same principles of construction, which this court adopt. Sheriffs and their deputies, in case of great opposition, are empowered, by the advice of two justices, to raise the militia, &c.; and if any person shall be killed or wounded in such case, the sheriff and militia are held guiltless. Deputies, in this last clause, are not named; but does any one sup [202] pose, that they would not equally be held guiltless 1 Every sheriff has power, in the day time, to enter and search houses and other buildings for any person, against whom he may have a warrant, and also to search for goods stolen, &c. Is there any doubt, that constables, in executing similar precepts, are armed with similar powers 1 By sect. 22 all process served by a sheriff is required to be returned, at the proper place of return, before the time set for trial. Does not the same obligation extend to constables ? Perhaps, too, the provisioii subjecting sheriffs to fifteen per cent, interest for refusing, on demand, to pay over money collected on execution, may extend equally to constables, although not named, considering the extra rate of interest rather as enhanced damages, than as a penalty. Sheriffs and their deputies are authorized to execute all precepts if! their hands at the time of going out of office; — was it ever doubted that constables could do the samel These examples are sufficient, to show that the utmost precision is not always observed in the language of statutes, and that a literal adherence to their terms would often defeat their obvious intent and meaning. In this view of the subject the term sheriff, as used in sect. 26, and in several other sections in the same chapter, may be regarded as a generic, not a specific, term, a nomen collectivum, comprehending the whole class of executive officers, whose duties are of like nature. The result is, the judgment of the county court is affirmed.