There is no legislative power enabling the relator Reeve to maintain this action in the name of the plaintiffs as commissioners of excise.
By the act of 1857 (chap. 628) certain penalties for unauthorized sales of strong and spirituous liquors and wines were to be sued for by the overseers of the poor of the town or city in which the penalty was incurred. (Sec. 22, as amended by chap. 820, Laws of 1873.) In case the parties, whose duty it was to prosecute for the penalties, failed to do so, then “ any other person may prosecute therefor in the name of the overseers of the poor ” of the town. (Sec. 30, as amended by chap. 820, Laws of 1873.) In 1878, the legislature again amended section 22 of chapter 628, Laws of 1857, by conferring the power upon boards of excise to sue for these penalties in their town when there was no overseer of the poor.
Section 30, as amended in 1873, was left unamended so that all persons who sued by reason of the neglect of “ parties or persons whose duty it is to prosecute,” would still be compelled to sue for the same in the name of the “ overseer of the poor ” of the town in which the alleged penalty was incurred. There is no overseer of the poor in New Lots, but that fact would not authorize courts to enlarge the power of a relator to sue in the name of the plaintiff beyond the plain words of the act.
No doubt it was the intention of the legislature to permit suits *197in the name of boards of excise when they neglected their duty, but no such intent is expressed, on the contrary a different plaintiff is named.
The order should be affirmed, with costs and disbursements.
Dykman, J., concurred ; Gilbert, J., not sitting.Order affirmed, with costs and disbursements.