State v. Woodbury , 35 N.H. 230 ( 1857 )

Bell, J.

Public officers are liable to indictment for any gross neglect of official duty, when no penalty otherwise recoverable is prescribed by law. Otis v. Strafford, 10 N. H. 355; Flower v. Allen, 5 Cowen 654; Minklear v. Rockfeller, 6 Cowen 276.

By the statute of 1855, ch. 1658, sec. 7, “ the selectmen of every town and place, in the month of April in each year, shall appoint one or more suitable persons, not exceeding three, agents for such town or place for the purchase of spirituous and intoxicating liquors, and for the sale thereof within such town or place, to be used in the arts, or for medicinal, mechanical and chemical purposes, and for no other use or purpose whatever.”

The indictment charges a violation of the duty thus imposed.

It seems the selectmen declined to appoint an agent, because the town, upon the subject being brought before them, by a proper article in the warrant for a town meeting, refused to provide the means to purchase the stock in trade of the agency.

The act contains no express provision that the town shall furnish the requisite funds; and it does contain a provision that the agent shall not be in any way, except as one of the inhabitants of the town, interested in the liquor, or in the purchase or sale of it, or in the profits of the business.

The question here is, if the selectmen can excuse themselves for the neglect to perform their duty, because of the refusal of the town to provide the capital necessary to enable the agent to perform his duties.-

It is not clear to the court that the expenses of this agency, and the funds necessary to procure a stock of liquors for sale, are not to be regarded as part of the ordinary expenses; or, as they are called in the statutes, the necessary charges of the town, to be defrayed from the taxes raised for the ordinary purposes of the town; so that no specific tax or specific appropriation of money by the town was required, and no neglect of duty could be attributed to the town for not specifically providing such funds. However this may be, the misconduct of the town, if it was such, their failure to do what seems to have been regarded as their part of the duty in carrying out this law, can furnish no justification or legal excuse for the selectmen in neglecting their duty. Every person upon whom the law has imposed a duty clearly and unequivocally is bound to perform it, regardless of the question whether others may or will perform theirs or not.

In this case, if the selectmen had appointed an agent, we are bound to presume that the town, notwithstanding their refusal at the annual meeting, would have provided the necessary funds, if it was necessary for them to do it. They may put forward the excuse, that by the misconduct of the selectmen there was no agency, and it would answer no useful purpose to provide funds.

A criminal prosecution is not, in our judgment, the judicious mode of reaching either the selectmen, or the town. There are probably civil proceedings much better adapted to cure the mischief complained of. There is not the slightest reason to suppose that either the selectmen or the town would obstinately refuse to do their duty, if they were satisfied what they ought to do. But the statute is deficient in its provisions, and it was probably doubtful to them how far they were bound to act. A civil proceeding, requiring them to do what the court should have decided to be their duty, would have been readily obeyed.

As towns are public corporations established for the administration of the municipal affairs, and the regulation of the police within their limits, there seems no serious doubt of the constitutional power of the legislature to impose upon them and their officers such duties as are here in question. -The objections made as to this point relate rather to the expediency of its exercise, which is not a subject for our consideration.

TJnder the. circumstances shown by the case, though we think the indictment maintainable, yet the court is not called upon, in the exercise of its discretion, to impose more than a nominal fine and a moderate amount of costs.