Williams v. Inhabitants of Taunton , 82 Mass. 288 ( 1860 )

Merrick, J.

By making the entire statute of 1855, c 401, a part of the declaration, it was with the other averments sufficiently alleged that it was the duty of the defendants to choose three fishwardens at their annual meeting held in the month of March, because it appears by its provisions that they were thereby expressly required to do so. The enactment of the statute being duly alleged, the court will take notice that it remains in force, and an averment to that effect is unnecessary. 1 Greenl. Ev. § 479. Nor is it essential to aver that the omission or failure of the town to elect fishwardens was contrary to the form of the statute. That is an allegation merely formal, and is not required under the provisions of the practice act. None of the forms in the schedule annexed to that act contains any such averment; and it seems clearly to have been the intention of the legislature that all mere formal allegations, although required by the rules of pleading at common law, should thereafterwards under it be dispensed with, and omitted as useless and immaterial. St. 1852, c. 312.

The statute regulating the fisheries in Taunton Great River is distinct and express in its provisions, that the several towns therein enumerated shall choose at their respective annual meetings, to be held in the month of March or April in each year, three fishwardens. It cannot therefore be of any con sequence, in reference to the question of the liability of any one of those towns to a fine and forfeiture by reason of failure or omission to make such choice, that the old or former fish-wardens hold over until others are elected to take their place, or that there is in fact no vacancy in the office. The liability is made to depend exclusively upon the omission or neglect to perform a certain and prescribed duty at or within a particular and specified time, and not at all upon the occurrence of any contingency by which a vacancy in the office may be occasioned.

The authority conferred and the duty imposed upon towns, in relation to the choice of fish wardens, is limited and precise. Three are to be elected by ballot at the annual meeting to be held either in the month of March or the month of April. This right cannot be exercised nor the duty performed at any other time. The choice therefore of fish wardens by the defendants at the special meeting called and held for that purpose on the 20th of April, after the annual meeting had been held and adjourned without day, was wholly unauthorized and ineffectual, and could not relieve them from the consequences resulting from a previous omission or failure to perform the positive duty imposed by law, and to which, under a prescribed penalty for neglect, they are expressly made subject.

Exceptions overruled.