People v. Allen — 6 Wend. 486

Majority

p. 486

The People vs. Allen, late sheriff of Ontario.

Headnote

A statute, specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, is directm'y merely, unless the nature of the act to be performed, or the phraseology of the statute is such, that the designation of time must be considered as a limitation of the power of the officer; and it was accordingly held, that a brigade order constituting a court martial, issued in July, when, by the militia law under which the proceeding was held, it was made the duty of the commandant of the brigade to issue such order on or before the first day of June in every year, was valid.

This was an action of assumpsit, tried at the Albany circuit in September, 1829. It was proved that the president of a brigade court martial, appointed for. the year 1818, paid to a deputy of the defendant, then sheriff of the county of Ontario, $284, being the amount of fines imposed by the court martial, received by the president. It appeared that the court martial was appointed by a brigade order, issued in July, 1818. The militia law under which the order was issued, made it the duty of the commanding officer of the brigade to appoint a brigade court martial, on or before the first day of June in every year. Laws of 1818, p. 220, § 17. The defendant’s counsel insisted that the order appointing the court martial having been issued after the day specified in the act, it was void, and the plaintiffs were not entitled to recover. The jury, however, under the direction of the judge, found a verdict for the plaintiffs, which was now moved to be set aside.

p. 487

1). Selden, for the defendant.

Q. C. Bronson, (attorney-general,) for the people.

By the Court,

The right of the plaintiffs to recover depends upon the legality of the organization of the court martial which imposed the fines paid over to the deputy of the sheriff. It is provided by the act “to regulate the militia,” Laws of ISIS, p. 220, §17, that “ the commanding officer of each brigade of infantry shall, on or before the first day of June in every year, appoint a brigade court martial,” &c. The court martial which imposed the fines paid to the deputy of .the sheriff, was not appointed until July. Could the power given to the commandant of brigade to appoint a court martial be exercised after the first day of June 1 The general rule is, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be performed, or the language used by the legislature, shew that the designation of the time was intended as a limitation of the power of the officer. The act regulating sales of real property on an execution, makes it the duty of sheriffs to file a certificate of sale in the clerk’s office in ten days after the sale takes place, yet this omission does not affect the validity of the sale. Jackson, ex dem. Hooker, v. Young, 5 Cowen, 269.

A case bearing more strongly upon the one under consideration is found in 2 Mass. R. 230 . The laws of that state regulate the mode of raising money to build and repair district school houses. Assessors are required to assess the tax within thirty days after they are furnished with a certificate of the vote of the district. In the case before that court, it appeared that the assessment was made after the time within which it is directed to be made, and the question was as to the validity of the assessment. Parsons, Ch. J. remarked, that although the assessors are directed to assess the tax within 80 days after the certificate, yet there are no negative words restraining them from making the assessment afterwards. “ The naming of the time must therefore be considered as di

p. 488

rectory to the assessors, and not as a limitation of their authority.” So it may be said of this case, that as there is nothing in the nature of the power showing that it might not be as effectually exercised after the first of June as before, and as the act giving it contains no prohibition to exercise it after that period, the naming that day was a mere direction to the office'r in relation to the manner of executing his duty. There is nothing in the nature of the power given, or in the manner of giving it, that justifies the inference that the time was mentioned as a limitation. If the power could be exercised after the first of June, the court martial was legally instituted. The money received by the deputy belonged to the plaintiffs, and was paid to him pursuant to law; the defendant is therefore responsible for it.

Judgment for the plaintiffs.