Van Valkenburgh v. Torrey

7 Cow. 252

Opinion

Curia, per Savage, Ch. J.

This action is brought for a penalty supposed to be created by the second section of the act to prevent horse-racing. The first section declares all racing and running, pacing and trotting for a bet, &c., common and public nuisances and offences against the state; and that all concerned shall be punished by fine and imprisonment. The second section enacts that the owner of every horse used in horse-racing, with his privity or permission, whereon bets are laid, shall forfeit for every race the value of such horse. This section is supposed to give the penalty of the value of the horse for trotting or pacing, by construction.

*It is an established rule, that penal statutes are to be construed strictly.

[1] Before the passing of the act in question, the running or trotting of horses for a wager was a lawful amusement; and so far from subjecting those concerned to any punishment, the courts enforced the payment of the wager. The legislature, however, thought proper to prohibit, by the 1st section of the act, all running and racing, and pacing and trotting, for a bet. These acts are declared public nuisances; and those persons who violate that section, maybe indicted, and punished in the manner provided by it. In the 2d section, the legislature have added to the former punishment for racing, a forfeiture of the value of the horse used for that purpose. Had they intended to punish those who trotted horses with an equal superadded penalty, it was easy to have said so. They have not said so; and that is a sufficient answer to this action. When the parties trotted for $100, they knew they were liable to be indicted; but there was no law subjecting them to any additional penalty.

There are decisions that penal statutes are to receive an equitable construction; by which cases not named may be included in the penalty. The reason is, that the lawmakers could not set down every case in express terms. But such a construction, I apprehend, cannot be applied, when all offences are enumerated, and a distinction is made in the punishment. When an additional penalty is imposed upon one only, the rule will. apply, expressio unius exclusio alter ius.

Another point was raised which need not be decided; but as the expression of an opinion upon it was desired, it may be given.

By the 3d section, the forfeiture mentioned in the 2d, is given to any one who will sue for the same, &c. By the 1st section of the act, requiring overseers of the poor to sue for penalties, &c., passed the 18th of February, 1820, (sess. 43, oh. 37,) all penalties incurred under the act to prevent horse-racing, after June 1st, 1820, were to be sued for by the overseers of the poor. And by the 5th section, it is enacted that in all cases provided for by that act, it *should not be lawful for any other person to sue for such penalty. This act continued in force until April 17th, 1823, when by the 7th section of an act, (sess. 46, ch. 181,) relating to the duties and privileges of towns, it was enacted that the 5th section of the former act of the 18th of February, 1820, be, and the same was thereby repealed. This is a simple repeal. FTo provision is made for offences committed, or suits pending; and perhaps none was necessary, as the overseers of the poor were still left at liberty to prosecute. The repeal of the 5th section merely, restored the right of other persons to prosecute, as well as overseers of the poor. But it could give no right, I apprehend, to persons other than overseers, to prosecute for offences already committed, between the 18th of February, 1820, and the 17th of April, 1823; because, during that time, the right of action was given exclusively to the overseers of the poor. The overseers, and they alone, could prosecute for offences then committed. The act has not a retro-active operation.

Upon both points, therefore, I think the plaintiff fails.

The motion to set aside the nonsuit must be denied.

Motion denied.

A penal statute should, be strictly construed. Sprague v. Birdsall, 2 Cowen, 419. A penal statute is not to be extended by an equitable construction. Myers v. Foster, 6 Cowen, 567. A statute penal as to some persons, if if is generally beneficial, may be equitably construed. Sickles v. Sharp, 13 John. Rep. 497. A penal statute which may be construed as authorizing either a summary remedy, or an action in the ordinary course of proceeding, shall be taken to mean the latter. Bennett v. Ward, 3 Cai. Rep. 259.

See N. Y. Dig. Vol. IV, tit. Statutes.