Cheesbrough a. Agate. money out of the separate property and estate of the defendant, Caroline E. House, the wife. No judgment was entered against either of the defendants, other than a judgment for a sum of money to be collected out of the separate estate. Execution was issued in the same form. The only question is, whether under this covenant the defendant is liable. His only undertaking was to pay any sum of money which should be recovered against both the defendants in that action. He was a surety: as such he has a right to insist that his contract should be construed strictly. He can only be held liable on the condition contained in it, viz., to pay any moneys for which both defendants shall be held liable. A recovery against the separate estate of one does not bring the case within that condition, according to its literal interpretation, and the defendant's liability may well be doubted. But the case as it is submitted to us is defective, and the defendant cannot raise that question on these papers. Whether upon the facts proven, the defendant is or is not liable is a question of law. The referee has found upon the facts, and has found the law upon these facts to be, that the defendant is liable. To this finding no exception has been taken. It is now well settled that a case must be prepared and settled by the referee containing the exceptions, during the trial or after the trial, and if not so incorporated, questions of law cannot be reviewed on appeal. I need only to refer to the cases of Hunt a. Bloomer (3 Kern., 341; Johnson a. Whitlock, Ib., 344), as settling this practice beyond doubt. We think, therefore, the appeal in this case is not well taken, and that the same should be dismissed, and judgment affirmed with costs. VOL. VII-3 The People on rel. Van Demark a. The Commissioners of Excise of Saratoga Co. THE PEOPLE on rel. VAN DEMARK a. THE COMMISSIONERS OF EXCISE OF SARATOGA COUNTY. Supreme Court, Fourth District; Special Term, July, 1858. EXCISE.-MANDAMUS. A mandamus should not be issued to direct a Board of Commissioners of Excise under the act of 1857, to grant a license. A mandamus should not be issued to direct them to entertain the application of the petitioner, after the board have met, and completed the term of ten days limited in the act. Application for a mandamus. The petitioner applied for a peremptory mandamus, to be directed to the Commissioners of Excise of Saratoga county, directing them to grant unto Gerardus C. Van Demark a license to sell strong and spirituous liquors and wines, to be drank on his premises, or, for a like writ to the said commissioners, directing them to entertain the application of the said Gerardus C. Van Demark for a license; and, if he is entitled thereto, to grant the same. L. B. Pike, for the motion. J. A. Shoudy, for the commissioners, opposed. POTTER, J.-The statute entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16th, 1857, provides, section one, for the appointment of a board of county officers, who shall be known as the "Board of Commissioners of Excise." The second section requires that this board shall meet in their respective counties, at the place where the county courts are required to be held, on the 3d Tuesday of May in each year, and on such other days as a majority of the commissioners shall appoint, not exceeding ten days in any one year (except in the city of New York), for the purpose of granting licenses, &c. This section further directs to whom, and what kinds of licenses may be granted, and confers the power upon this board to grant such licenses. By the third The People on rel. Van Demark a. The Commissioners of Excise of Saratoga Co. section, they are directed to keep a book of minutes of all their proceedings, in which shall be entered "every resolution passed by them, granting a license to any person," &c., which minutes shall be verified by their signatures, and. filed with the town clerk of the town for which such license shall be granted, and in the cities, with the city clerks. The fourth section directs the licenses to be signed by the commissioners granting the same,forbids their issuing, until the requirements fixed by the board shall be complied with,-fixes the time of their duration, and makes them all expire on one particular day. Section five authorizes the board to appoint a clerk for the time they may be actually in session in accordance with the provisions of this act,-requires another book of minutes in which shall be entered the names of all applicants for license, a list of all licenses granted, the names of the parties to whom granted, and the names of the securities to the bond, &c.; and allows to each of the persons composing such Board of Excise, the sum of three dollars per day, for services actually performed. Section sixth prohibits granting licenses except upon the applicant's complying with certain prescribed terms; nor unless the commissioners are satisfied that the applicant is of good moral character; that he has sufficient ability to keep an inn, tavern, or hotel, and has the necessary accommodations to entertain travellers; and that an inn, tavern, or hotel is required for the actual accommodation of travellers at the place, &c.; and in case the commissioners shall grant any license contrary to the provisions of this act, they shall be deemed guilty of a misdemeanor. The twentysecond section provides that certain penalties in the act shall be sued for and recovered, in the name of the Board of Commissioners of Excise, &c The provisions above, selected from the act, seem to be all that affect the question presented to me for consideration. It appears from the papers upon which the motion is made, that the Board of Commissioners put their refusal to act in the case in question solely upon the ground, that having already met on the 3d Tuesday of May, 1858, and on nine other days appointed by them, making, in all, ten days of session, in the year 1858, their power to act, for the purpose of granting licenses in this year, was at an end; and, for that sole and only reason, they refused to entertain the application of the said Gerardus C. The People on rel. Van Demark a. The Commissioners of Excise of Saratoga Co. Van Demark, but giving their consent to entertain the application, if the court should decide they had the power. It is certainly clear, that if the intent of the statute is to limit the powers of this board to act for only ten days in each year, a license subsequently granted would afford no protection to the applicant. It would be void for want of jurisdiction in the board to grant it. (Palmer a. Doney, 2 Johns. Cas., 349; Rex a. Sainsbury, 4 Durn. & E., 451.) The object of this application seems to be, to ascertain what powers this board possess, in reference to the question submitted. It is obvious that the Legislature intended by this act to constitute a public body of county officers, having certain quasi corporate powers; to have perpetual succession; to have an official name and character; and to be endowed with corporate capacity in all the particulars in which power is expressly bestowed upon them. And it is a wellestablished principle of common law, in regard to such bodies, that wherever the act which creates them is silent as to the power conferred, they possess, by necessary implication, all the authority that is requisite or necessary to execute the purposes of their creation; among which is the incidental power of suing and being sued in regard to all matters pertaining to the duties enjoined by law, or of any omissions of duty by them, in that particular department of the public interests. Any duties, therefore, which they officially owe to the public, or to individuals, may be enforced through the power of the courts, by the same remedies, and with the same effect, as if they were natural persons. But still, they are a jurisdiction created by statute, and are limited to the exercise of the powers only that are expressly conferred by the statute creating them, and these pow ers they cannot enlarge by implication, except as above stated. To grant licenses, it is seen, is one of the powers expressly conferred upon this board by the second section of the act; and it is a general rule in the construction of statutes, that when a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, and not mandatory or jurisdictional, unless the nature of the act to be performed, or the language used by the Legislature show, that the designation of time was intended as a limitation of power of the officer.. (People a. Allen, 6 Wend., 486.) It was argued, that inasmuch The People on rel. Van Demark a. The Commissioners of Excise of Saratoga Co. as there are no negative words in this statute prohibitory of the exercise of this power at any season or time of the year, provided the board should so appoint, nor any language declaring their functions as a board suspended during the remainder of the year, like all other public bodies, they still retain the power. This is true, as a general rule, but it will be seen by the terms of this statute, that the time given to them in which they may execute the power conferred, is expressly limited in its duration, and the only discretion conferred upon them in that particular, is the selection or appointment of the ten days in which they can so exercise their power. And it will hardly be questioned, as a rule, that when a limited discretion has been once exercised, its power is exhausted. These words of limitation are a new feature in this statute; they were never before inserted in the excise law; they must have been inserted to create some change, and must, therefore, be construed to have a significant meaning. The time so limited is doubtless sufficient for the exercise of these duties in any of the counties in the State, except New York (which is excepted). The Legislature may have limited this power only from an apprehension of an abuse of power by. this body, as, that they might become a permanent and an exceedingly expensive one without such a limitation. Be that as it may, it is not our duty to speculate as to the reason. sufficient for us that they made such a limitation in the act, and the time so limited has been exhausted by this board. Take, for illustration, a much stronger case than this, that of the "county court." That is a tribunal recognized not only by statute, but is created by the constitution itself-a body having perpetual existence, and having certain continuous powers. That court is authorized by statute to make its own appointments of the days and tires when they will hold a court, and exercise their authority. After they have exercised the power of appointment, have made their order for that purpose, and published it, this power, so exercised, becomes itself the law, and is no longer a question of discretion; and would it be pretended by any good lawyer that this county court could meet and exercise jurisdiction, and try causes on any days they chose, other than those appointed? I think not. It is I cannot agree with the counsel for the petitioner that the limitation of time, by this act, is eleven, instead of ten days. |