Opinion of the Court, per FOLGER, J.

No provision of the law has been cited, which affects an elective office, as is affected an appointive office by the section of the Revised Statutes above referred to. And as it occurs among sections treating in turn of elective and appointive offices, the legislative intent in it went no further than the latter.

We are, therefore, not constrained by the case in 22 N. Y., to forego the conclusions to which we are led in this case.

And he could not have

And we hold, that the defendant had no right or title to the office of justice of the eighth judicial district court, after the expiration of his term of six years, for the reason that the act of the legislature of 1866, so far as it sought to continue him in office thereafter, was unconstitutional and void. But it does not follow from this conclusion, that the relator ever acquired a title to the office. If he was not duly elected to the office, he had no title to it. been duly elected, unless it was lawful to hold an election in 1866, to choose a person to that office. It was not lawful in that year to hold an election, if the legislature had the power to fix the holding of such election in another year, and to repeal the law for holding it in that year, and if it has so exercised that power as to be operative. The only provisions of law, which we find authorizing the holding of an election to fill that office are as follows: In the act of 1860, (section 4), an election was provided for at the charter election in that year. At that election the defendant was legally chosen; and that passed by. In the fifth section of the act of 1860, it is in general terms provided, that the incumbent of the office, shall be subject to all the legal provisions then existing in relation to the district courts in the city of New York. If this general phrase rendered the office subject to an election, at the time when the offices of the other justices were thus subject, it would not have been on the fourth day of December, 1866, when the relator claims to have been elected. For the time fixed by law for the election of the others was not on that day. (Laws of 1851, chap. 514, p. 957, §7.) Then comes the act of 1866, which in the second

Opinion of the Court, per FOLGER, J.

section fixes the time of the election to this office, at the charter election in the year 1869, and once in every six years thereafter.

As this is the later statute, if it is repugnant in this provi sion to anything in any former act, the former act is, to that extent, impliedly repealed. A statute, or a part thereof, may be repealed by express words, or by necessary implication. The last effect takes place whenever, by later legislation, it becomes apparent, that the legislature did not intend the former provision to remain in force. If a later statute be repugnant to an older one, so that upon any reasonable construction, they cannot stand together, the first is repealed by implication, though there are no repealing words. It is patent then that the act of 1866, passed the twenty-fourth day of March of that year, having fixed the charter election of 1869 as the time for the election to this office, there could be no lawful election to it in the month of December of 1866, if the legislature had the right to change the time for the election. The Constitution empowers the legislature, in the clause first above quoted, to direct the times and manner of the election. This power is not exhausted by being once exercised. It is a continuing power. And the legislature may, from time to time, as it sees occasion, direct when, and how the election shall take place.

So, as it is not apparent, that the legislature ever directed an election to be held for this office in the year 1866, and as if it did, it afterwards and before the election of that year, changed the time thereof to the year 1869, the form of voting for the relator, on the part of certain of the electors in 1866 was of no avail, their votes went for naught, and the relator was not chosen to the office. (The Commonwealth v. Baxter, 35 Penn., 263.)

If it be said that the legislature would not have enacted the second section of the act of 1866, directing the time of the election in 1869, if it had not, also, at the same time enacted the first section, continuing and extending the term of office, with a belief that it had power so to do; this may

Opinion of the Court, per FOLGER, J.

be. We are not called upon to decide that. Though the first section is void, and is, as if it were not, yet the second section remains. It is not so dependent upon, or connected with the first section, but that it is operative without it.

A portion of a law may be invalid and another portion valid. An invalid portion will not affect another and distinct provision which is valid. (Duer v. Small, 17 How. Pr. R., 205; Bank, etc. v. Dudley, 2 Peters, 526.)

The provision in the second section of the act of 1866, is so distinct from and independent of all others, as that it may be read, and is intelligible and may be operative, alone. It was adopted in the exercise of legislative power. We are not at liberty to repeal it by decision, or to suspend its action, because found in the same statute with a provision, the validity of which is questioned, nor because, if enforced alone, it may work inconvenience.

The relator, not having been chosen to the office, is not entitled to a judgment in his favor.

But, as the defendant was an intruder upon the office, the people are entitled to judgment against him to that effect.

It follows that the judgment of the court below, in favor of the defendant, should be reversed, and that judgment should go for the people against him; but, under the circumstances of the case, without costs to either party, as against the other, in this court.

All concur.

Judgment accordingly.

Statement of case.

46 70 114 539

46 70 154 460

JAMES T. HALL, Respondent, v. WALTER E. LAUDERDALE,

Appellant.

An agent, acting within the scope of his authority, and disclosing his agency,
will not be personally bound, unless upon clear and explicit evidence of
such an intention. The rule is still stronger in the case of a public
agent.

An action cannot be maintained against an agent, although, having money
of his principal's in his hands, applicable to the payment of the debt of his
principal, he refuses to pay it. He is responsible to his principal only for
neglect of duty, and owes no legal duty to the creditor.
The provision of section twenty-two of the act of 1864 (chap. 8, Laws of
1864), authorizing the raising of money for paying bounties, etc., being
silent as to the means to be used to procure enlistments, it devolved, by
necessary inference, upon the board of supervisors to adopt such means,
and agencies to accomplish the purposes of the act, as they should deem
appropriate. A resolution of such board appointing a recruiting agent,
authorized him to appoint sub-agents; his contract for their services
bound the county, and he is not personally liable. (GROVER, J., dis-
senting as to power to bind county.)

Even if the board had no authority to appoint the agent, yet, as its power
was determined by the statute, known to both parties, the agent is not
personally liable. The agent does not warrant the capacity of the prin-
cipal to contract.

(Argued June 1st, 1871; decided September 2d, 1871.)

APPEAL from judgment of the late General Term in the seventh judicial district, reversing judgment for plaintiff, entered in Livingston county on the report of a referee. The facts of the case are sufficiently set forth in the opinion.

Scott Lord, for appellant, that the referee erred in refusing to nonsuit plaintiff, The People v. The Board of Supervisors of the County of Livingston (34 N. Y., 516). Plaintiff was authorized to appoint a sub-agent. (Story on Agency, 8873, 201; Paley on Agency, 197, 200; 2 Kent's Com., 617, 618; Gage v. Sherman, 2 N. Y., 497.) A public agent can never be held personally liable, except under an express promise. (Walker v. Swartout, 12 Johns., 444; Oli

Opinion of the Court, per ANDREWS, J.

ver v. Hicks, 18 Johns., 122; Fox v. Drake, 8 Cow., 191; Belknap v. Rinehart, 2 Wend., 257; Osman v. Kerr, 12 Wend., 179; Nichols v. Moody, 22 Barb., 611, 614, 615, 619; Allen v. Barela, 7 Bosw., 218, 219; Hodgson v. Dexter, 1 Cranch, 345; 2 Kent's Com., 4th ed., 632; Story on Agency, $306.)

J. B. Adams, for respondent. That defendant is personally liable. (Dunlap's Paley on Agency, 394; Murdock v. Aiken et al., 29 Barb., 59; Ross v. Curtis, 30 Barb., 238; Pumpelly v. Phelps, 40 N. Y., 59; Dunlap's Paley on Agency, 380-382; Taft v. Brewster, 9 Johns., 334; Barker v. Insurance Co., 3 Wend., 94; Pentz v. Stanton, 10 Wend., 277.)

ANDREWS, J. The board of supervisors of Livingston county, acting under the authority, conferred by the twentysecond section, of chapter eight, of the Laws of 1864, provided by resolution for raising money on the credit of the county, to fill the quota of the county, under the call of the president of the United States for volunteers, of July 18, 1864.

The county assumed, in its corporate capacity, to provide the means to raise by voluntary enlistment, the men required to meet the demand of the general government, and thereby avert the necessity of a conscription.

That this was the nature of the proceedings, taken by the board of supervisors, was substantially held by this court in the case of The People v. The Board of Supervisors of Livingston County (34 N. Y., 516).

The authority given by the twenty-second section of the act of 1864 was, to raise money on the credit of the county, for the use of the county, and "for the purpose of paying bounties to volunteers into the military and naval service of the United States, during the existence of the war, and for the purpose of paying the incidental expenses of such volunteering, etc."