People v. O'Neil ( 1889 )

Putnam, J.

The action was brought by the people of the state under sections 2, 3, c. 577, Laws 1888. A motion was made to set aside the summons on tile ground that it was not properly indorsed, as required by section 1897 of the Civil Code, and denied, at special term; and this is an appeal from the order denying such motion.

It is not denied that, if this is a case requiring an indorsement under said section of the Code, the indorsement made was not a compliance with the statute. Section 1897 is contained in article 3, tit. 4, c. 15, of the Civil Code, said article containing six sections, from 1893 to 1898, inclusive, and is entitled: “Action by a private person for a penalty or forfeiture.” It is claimed by respondent that the title limited the operation of section 1897 to actions by private persons, and that it does not apply to this action by the people; and that, in fact, no indorsement was necessary on the summons. The statute has been construed as claimed by respondent at special term. See Townsend v. Hopkins, 9 Civil Proc. R. 258, 261. A contrary construction of the statute has been held by the general term of the Hew York common pleas in Spoor v. Cornell, 12 Civil Proc. R. 319. See, also, Mayor v. Wood, 6 N. Y. Supp. 657; Young v. Gregg, 9 Civil Proc. R. 262. The first four sections of article 3, by their terms, apply to actions by private persons. Sections 1897 and 1898, in terms, are general, and apply to all actions; and, were it not for the title, there could be no doubt that section 1897 was applicable to the summons in this case. It can hardly be doubted but that the last section of the article (section 1898) applies to all actions, whether brought by the people, a public officer, or a private person. The language is general; and the intent to apply to all actions for penalties, by whoever brought, is apparent. In section 1897 the language is not limited to an action by a private person. The section says, “in an action.” It would be no stronger if it had said, “in every action.” The plain meaning is, unless otherwise construed on account of the title, that in every action brought to recover a penalty or forfeiture there shall be an indorsement on the summons. The question is not free from doubt; but we incline to believe the construction given to the section by the general term of the court of common pleas of Hew York is correct. The title of an act is no part of it, although it may be used to aid in discovering the design of the legislature. Jones v. Sheldon, 50 N. Y. 477; Brick v. Gannar, 36 Hun, 52; In re Middletown, 82 N. Y. 196. But when the language of a statute is plain, and the construction apparent, the construction cannot be altered by the title. In re Middletown, supra. In section 1897 there seems to be no ambiguity. It contains a general direction that in an action for penalties there must be an indorsement on the summons. By its terms, it applies to all actions. Unless limited by the title, no question could be raised as to its construction. If limited by the title the effect is, by the title, to change what otherwise would be the plain and unambiguous meaning of the section. Again, section 1897 is a substitute for section 7, art. 1, tit. 6, c. 8, pt. 3, Rev. St., which required the indorsement in all actions; and, although the phraseology of the present section differs somewhat from the former one, it should not be deemed that the legislature intended to change the existing and well-settled law, which required an indorsement on the summons in all actions, unless it clearly appears that such was the intent. See Douglas v. Douglas, 5 Hun, 140. Again, there is no reason why the defendant is not as much entitled to a notice of what the action is brought for, and under what sections of the statute, when it is commenced by the people as when brought by a private person. He could not know the object of the action any more when the people is plaintiff than when an individual brings the action. The object, the intent, of the legislature, doubtless, was that a defendant sued in these actions for penalties should at once be informed by the summons under what law, and section of the law, the action was commenced. The propriety of giving him that information applies in an action brought'by the people as well as in one by an individual. It is reasonable to suppose that the legislature intended to make the section applicable to all actions, by whomever brought. We conclude that section 1897, in terms, applies to every action for penalties, by whomever brought, and that its force is not intended to be limited by the title; and hence that the order should be reversed, with costs and printing expenses, and the motion made by the defendant to set aside the summons should be granted, with $10 costs. All concur.