Inhabitants of Great Barrington v. Gibbons

• Decision Date: 19 October 1908
• Parties: INHABITANTS OF GREAT BARRINGTON v. GIBBONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

199 Mass. 527

85 N.E. 737

INHABITANTS OF GREAT BARRINGTON v. GIBBONS.

Supreme Judicial Court of Massachusetts, Berkshire.

October 19, 1908

COUNSEL

Collins & Gilddings, for plaintiffs.

Howard M. Whiting and Herbert C. Joyner, for defendant.

OPINION

SHELDON J.

This bill is brought in the name of the plaintiff town under Rev Laws, c. 81,§ 11, to compel the defendant to contribute to the support of his grandchildren. The town, by vote under Rev. Laws, 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 Rev. Laws, 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, 55 N.E. 894. And see the cases 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 defendants contend that the words 'preceding sections' should be limited to the three sections which immediately precede section 38. The authority in question was given to the overseers of the poor by St. 1793, p. 479, c 59, § 14, and has existed since that time. It was successively codified into Rev. St. 1836, c. 46, § 26, and Gen. St. 1860, 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. St. 1882, 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 phraselogy of the statute indicated an intention of the Legislature to change the law and restrict the authority given by Rev. Laws, c. 81, § 38 to the overseers of the poor, to actions and prosecutions brought under sections 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...