Inhabitants of Great Barrington v. Gibbons

85 N.E. 737, 199 Mass. 527, 1908 Mass. LEXIS 867

• Court: Massachusetts Supreme Judicial Court
• Decided: October 19, 1908
• Status: Published

Opinion

Sheldon, J.

This bill is brought in the name of the plaintiff town under R. L. c. 81, § 11, to compel the defendant to contribute to the support of his grandchildren. The town, by vote under R. L. c. 25, § 12, had appointed its selectmen its agents to sue in its name. This suit was brought by the overseers of the poor of the town, without any authority from the selectmen or otherwise, except what may have arisen from their office as overseers of the poor; and the question is whether the action was rightly brought.

The general rule is that an officer of a town cannot merely as such officer bring an action in the name of the town. Walpole v. Gray, 11 Allen, 149, 150, and cases cited. But it is provided by R. L. c. 81, § 38, that “in all actions and prosecutions founded on the provisions of the preceding sections, the overseers of the poor of any place . . . shall appear and prosecute or defend the same in behalf of such place.” To “ prosecute ” an action includes the bringing as well as the carrying on of the action. This is the ordinary meaning of the word. Clinton v. Heagney, 175 Mass. 134. And see the eases collected in 23 Am. & Eng. Encyc. of Law (2d ed.) 268. And the words “ preceding sections,” taken literally, include the section of the same chapter under which this bill was brought.

But the defendant contends that the words “ preceding sections ” should be limited to the three sections which immediately precede § 38. The authority in question was given to the overseers of the poor by St. 1793, c. 59, § 14, and has existed since that time. It was successively codified into Rev. Sts, c. 46, § 26, and Gen. Sts. c. 70, § 22. In all these statutes, the authority of the overseers of the poor was in terms extended either to actions and prosecutions under all the provisions or under the preceding provisions of the respective chapters. This would include in each case actions like the one before us. But the language was changed in Pub. Sts. c. 84, § 33, by omitting the words “of this chapter,” so that the statute was cast in its present form. The defendants contend that this change in the phraseology of the statute indicated an intention of the Legislature to change the law and to restrict the authority given by R. L. c. 81, § 38, to the overseers of the poor, to actions and prosecutions brought under §§ 35, 36 and 37. But it does not appear that any change in the law was intended in the revisions either of 1882 or 1902; and the general rule is well settled that mere verbal changes in the revision of a statute do not alter its meaning. Savage v. Shaw, 195 Mass. 571, and cases cited. Tilton v. Tilton, 196 Mass. 562, 564, and cases cited. A striking example of the application of this rule may be found in Electric Welding Co. v. Prince, 195 Mass. 242, 259, et seq. This general rule cannot be overcome by the fact that in the two latest revisions there has been included among the “ preceding sections ” a provision (Pub. Sts. c. 84, § 25; B. L. c. 81, § 29) under which a criminal prosecution might be brought against the overseers of the poor themselves, and that they would not be held to be authorized either to prosecute or to defend such a prosecution in behalf of the town.

Accordingly, under the terms of the report, the case is to stand for trial.

So ordered..