delivered the opinion of the court. By the first section of the act relative to the duties and privileges of towns, (2 N. R. L. 125. sess. 36. c. 35.) overseers of highways are to be annually chosen; and the 9th section of the act imposes a fine of twelve dollars fifty cents for neglecting or refusing to take the office. The 14th section of the act regulating highways, (2 N. R. L. 270. sess. 36. c. 33.) provides, that if any vacancy in the office of overseer of highways shall happen, by death, or otherwise, the commissioners of the town shall appoint “ other or others in his or their stead,” *433who are rendered liable to the same penalties as overseers chosen are liable to. The commissioners exceeded their powers In appointing the same person, who had been elected, and refused to qualify, to the same office. They were confined, by the terms of the act, to the appointment of some person, other than the person refusing. The legislature considered the pe» nalty as an equivalent for the service; and if the construction be tolerated which the court below have adopted, the person refusing to accept the office, for which he might have very urgent reasons, would be subjected to endless litigation, if not ruin. Whether, therefore, there was legal proof of the recovery of the former penalty, or not, Haywood stood exposed to be sued for the penalty, and was not liable to be appointed to the office.
Judgment reversed.