Opinion
Decided October 7, 1902.
If the moderator of a school-district meeting willfully refuses to make a vote certain by a poll of the voters when duly required, he is liable for neglect of official duty under section 14, chapter 255, Public Statutes; and the penalty prescribed is properly recoverable by a criminal proceeding in the name of the state.
INDICTMENT, for willfully refusing to make a vote certain by a poll of the voters, while the defendant was acting as moderator of a special meeting of the school district of Barrington. The defendant's demurrer was overruled by Wallace, C. J. at the February term, 1902, of the superior court, subject to exception.
Walter W. Scott, solicitor, for the state.
George E. Cochrane, Samuel W. Emery, John Kivel, and Frank F. Fernald, for the defendant.
A moderator is one of the officers provided by statute to conduct the affairs of a school-district meeting (P. S., c. 90, s. 12); and as such officer he is charged with the performance of certain public duties. Stone v. Towne, 67 N.H. 113, 115. By section 17, chapter 90, and section 6, chapter 42, of the Public Statutes, he is charged with the particular duty here called in question, — of polling the voters to make certain any vote, other than one taken by ballot, upon being duly required so to do. While section 17 provides that a school-district moderator "shall have the like power and duty as a moderator of a town meeting to conduct the business," it contains no provision imposing the same or any penalty for neglect of duty by a district moderator. Its omission discloses an intention not to incorporate the provisions of section 7, chapter 42, into, and make it a part of, section 17.
This interpretation of the statute does not render it inoperative. The moderator of a school-district meeting is a public officer within the meaning of section 14, chapter 255, of the Public Statutes, which provides that "if any public officer willfully neglects any duty of his office, and no penalty is prescribed by statute for such neglect, he shall forfeit a sum not exceeding thirty dollars." The indictment charges the respondent, while acting as moderator, with willfully neglecting a duty of his office; and as there is no statute imposing a particular penalty for such offence, it is punishable under the general one relating to public officers. State v. Hoit, 23 N.H. 355, 359.
"A forfeiture prescribed 'by statute for an offence created by statute is properly recovered by indictment or information, when no person is named to take the penalty." State v. McConnell, 70 N.H. 158,161; State v. Tappan, 15 N.H. 91. As the offence is statutory, and no person is designated by section 14 to take the penalty, the indictment lies.
In view of the provisions of section 14, chapter 255, imposing a penalty for willful neglect of duty by a public officer in cases otherwise specially provided for, it becomes unnecessary in the decision of this case to consider the contention of counsel for the state, that where a statute creates a public duty, without imposing a penalty for its violation, an indictment lies at common law for its willful violation. State v. Fletcher, 5 N.H. 257; State v. Woodbury, 35 N.H. 230; End. Int. Stat. ss. 463, 464.
Exception overruled.
All concurred.