Village of Page v. Farmery

Beucb, J. (after stating the facts as above)., This opinion is filed .upon a rehearing. It is claimed by defendant (1) that under the provisions of § 7395, Rev. Codes 1905, § 8015, Compiled Laws of 1913, penalties can only be recovered by the party for whose benefit the recovery can be had; (2) that although §§ 1433-1435 and 1436, Rev. Codes 1905, §§ 2022 — 2024 and 2025, Compiled Laws of 1913, make provisions for the imposition of penalties in proper cases for failure to perform work at the command of a road overseer, which penalty when recovered is to be paid to the road overseer of the district, to be by him expended in improving the roads and bridges in his district, and although the complaint alleges that the complaining witness is road overseer for the village of Page, there is no provision in the statute providing for the appointment of overseers of highways by the board of trustees of an incorporated village; (3) that even if it be assumed that the village of Page is an entire road district of Page township, and that the complaining witness is the overseer of such district, yet the district is not itself a legal entity and has no capacity to sue, and that the road overseer is not an officer of the district or of the village but of the township, and that the penalty, if recoverable at all, can only be recovered by the said .township; (4) that the plaintiff and respondent, the village of Page, is an incorporated village, and that the court will take judicial notice of the fact, yet the complaint fails to allege any such incorporation; and (5) that under §§ 1428 and 1432, Rev. Codes 1905, §§ 2017, 2021, Compiled Laws of 1913, every person liable to work on the highways may elect to commute for the same or some part thereof, and that the complaint fails to allege whether or not .the defendant elected to so commute; and (6) that under § 1433, Rev. Codes 1905, § 2022, Compiled Laws of 1913, no complaint is authorized unless the defendant has failed to render a satisfactory excuse, and that there is no allegation as to whether such excuse has been furnished or not. There is certainly no merit in point 3, that the village of Page is [213] incorporated, and that the court will take judicial'notice of the fact, and yet there is no allegation to that effect. Counsel is correct in his assumption that the court will take judicial notice of the' fact of the incorporation of the cities and villages of the state. See subdiv. 18, § 7319, Rev. Codes 1905, § 7938, Compiled Laws of 1913. Such being the case, however, no allegation or proof was necessary. See 31 Cyc. 47; French v. Senate of California, 146 Cal. 604, 69 L.R.A. 556, 80 Pac. 1031, 2 Ann. Cas. 756; Re Chope, 112 Cal. 630, 44 Pac. 1066. Nor is there any merit in the proposition that although the complaint alleges that the complaining witness is road overseer for the village of Page, there is no provision in the statute providing for the appointment of any such officer by the board of trustees of an incorporated village, and that therefore the penalty, if recoverable at all, can be recovered by the township alone. The proceedings, it is true, were taken in the manner prescribed by §§ 1426, 1430, 1432, 1433, 1435, and 1436, Rev. Codes 1905, being §§ 2010, 2019, 2021, 2022, 2024, and 2Q25; Compiled Laws of 1913, and these sections relate primarily to proceedings which are brought by the townships and by the township road overseers. Section 2864, Rev. Codes 1905, being § 3861, Compiled Laws of 1913, however, gives to the board of trustees of incorporated villages the power “to appoint street commissioners,” while § 2888, Rev. Codes 1905, being § 3893, Compiled Laws of 1913, gives to such trustees the power “to superintend the grading, paving, and improving' of streets.” Section 6 of chapter 267 of the Laws of 1907, being § 3888 of the Compiled Laws of 1913, provides that “the same powers and duties in regard to the levy, collection, and expenditure of road taxes, which are now by law conferred and imposed upon township supervisors, township road overseers, justices, and constables, are hereby conferred and imposed upon the corresponding village officers, in so far as such powers and duties do not conflict with the provisions of this article.” ■ There can be no doubt that under the provisions of the Revised Codes of 1905, and prior to the enactment of chapter 267 of the Laws of 1907; the position of appellant would have been tenable, and that actions of this sort would have had to be brought in the name of the Township and by the township road overseer. There can be no doubt, howevér, that now and since the passage of chapter 267 of the Laws of 1907; [214] such actions may be brought by the corresponding village officials and in the name of the village. We cannot, in fact, read the chapter without being convinced of the clear intention to adopt the provisions contained in §§ 1426, 1428-1430, 1432, 1433, 1435, and 1436, Rev. Codes 1905, being §§ 2010, 2017 — 2019, 2021, 2022, 2024, and 2025 of the Compiled Laws of 1913, and which relate to townships and township officers, and to apply them to highways which are contained within the limits of incorporated villages, giving to the corresponding village officers the same powers and duties which are conferred by the sections above-mentioned upon township road overseers, and imposing the duties of levying and collecting the taxes upon the village, rather than upon the township. The demurrer admits that the complaining witness is in fact “the road overseer of the village of Page.” Section 3888 of the Compiled Laws of 1913 gives to the corresponding officer of the village the same powers as are conferred upon the township road overseer. It is immaterial, therefore, what the specific title of the officer may have been. When we come to consider the 5 th point, which is that the complaint fails to state whether or not the defendant elected to commute, and whether he did or did not fail to present a satisfactory excuse to the road overseer, and the contention. that the complaint fails to state a cause of action under the general rule “that where there is an exception in the enacting clause of a penal statute, or in the clause which defines the offense, the plaintiff suing under it must show that the defendant is not within it, we are of the opinion that the point is not well taken, nor is the rule applicable in the proceeding under consideration in the case at bar. We are satisfied, indeed, that it was the intention of the legislature that no formal pleadings should be required under the proceedings authorized by the statute before us, and that such proceedings are sm generisSection 2022, Compiled Laws of 1913, merely provides that the road overseer shall make complaint to one of the justices of the peace, while § 2023 provides that, on such complaint being made, the defendant shall be summoned “to show cause why he should not be fined according to law.” It is to be noticed that the collection of this road tax is a matter in which the state’s attorney cannot be called upon to act, nor is there any other public attorney provided by law whose duty it is. The duty devolves entirely upon the road overseer, who in [215] the great majority of cases must necessarily be one wbo is unacquainted with tbe strict forms of legal procedure. It would seem unreasonable to require sucb person to pay for tbe services of an attorney, and there is no provision anywhere for such expenditure. The statute speaks of showing cause, rather than of interposing a defense. We are satisfied that the procedure was intended to be sui generis, and that all that is required is that the defendant shall have a fair hearing and be fully informed of the charges which are made against him. The record in this case conclusively shows that the point urged by appellant was neither urged in the justice’s court nor in the district court, and that the defendant had a full hearing upon the other questions which we have passed upon. He therefore had his day in court and a fair hearing, and this, we believe, is all that the statute requires. It is, too, to be noticed that the summons which was made out by the justice of the peace and served upon the defendant contains the negations which appellant claims should have been made in the complaint, and as fully informed the defendant of the issues as could any formal complaint. The judgment of the District Court is affirmed.