American Society for Prevention of Cruelty to Animals v. City of Gloversville

The stipulation of facts submitted on this action shows that the plaintiff is a domestic corporation, organized, under the laws of this state, to prevent cruelty to animals, under chapter 469 of the Laws of 1866, with some of its powers and duties regulated and defined in chapter 375 of the Laws of 1867, chapter 12 of the Laws of 1874, § 668 of the Penal Code, and chapter 490 of the Laws of 1888. The defendant is a municipal corporation organized under the provisions of chapter 55 of the Laws of 1890. On the 21st of August, 1891, a fine of five dollars was imposed upon, and collected of, one Lewis Messer, by the recorder of the city of Gloversville,—the defendant; and on the 29th of October of the same year a fine of eight dollars was imposed" by the same magistrate on, and collected from, Thomas Hughes. Both fines were imposed and collected for violations of the Penal Code relating to cruelty to animals. The proceedings in which both these fines were collected, were instituted and prosecuted by the plaintiff, and when the fines were recovered by the magistrate they were, respectively, demanded of him by the plaintiff, and by him refused ; and the monev collected was paid by the magistrate to the city chamberlain of the defendant, who

This provision of the Penal Code, unless the same has been, in express terms, repealed or modified by some subsequent act of the legislature, seems to be controlling. But is is insisted that the provision of the Penal Code above quoted antedates that of the act incorporating the city of Gloversville, and as the charter of that city contains in itself ample authority to deal with all violations of law, of this character, it amounts, in effect, to a repeal, so far as that city is concerned, of this provision of the Penal Code; and, in support of that contention, we are referred to § 10 of title 9 of chapter 55 of the Laws of 1890. That section requires the recorder to make and file a monthly statement of all fines and penalties imposed and collected by him, and to pay the same over to the chamberlain. While this provision, in the absence of any qualifying provision of law,-authorizes and supports the contention of the defendant, it does not amount to an express repeal of the provisions of § 668 of the Penal Code. At most, it would be but a repeal by implication. But such repeal is expressly forbidden by the last section of the Penal Code. Section 728 of that Code provides as follows: “No provision of this Code or any part thereof, shall be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless some statute shall explicitly refer thereto, and directly repeal, alter or amend this Code accordingly.”

With this positive provision of law upon this express subject, we do not see how we can hold that the city of Gloversville is entitled to these penalties, or can claim to hold the same against the express provision of the statute, which says that such penalties “ must be paid on demand to the American Society for the Prevention of Cruelty to Animals.” That provision relates to these prosecutions anywhere in the state, and must, in the absence of any express provision of statute to the contrary, be deemed to apply to the city of Gloversville. The case of Tillage of Gloversville v. Howell, 70 N. Y. 287 , is not an authority against this conclusion.

With the policy of this law, discussed by the learned counsel for the defendant, we have nothing to do. His argument may be

All concur.