Davis v. State ex rel. Long
| Decision Date | 21 June 1889 |
| Docket Number | 14,834 |
| Citation | 22 N.E. 9,119 Ind. 555 |
| Parties | Davis, Administrator, v. The State, ex rel. Long, Prosecuting Attorney |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Oct. 16, 1889.
From the Washington Circuit Court.
The judgment is reversed, with costs.
D. M Alspaugh and J. C. Lawler, for appellant.
S. B Voyles, for appellee.
Section 6339, R. S. 1881, imposes a penalty of not less than fifty dollars nor more than five thousand dollars upon any person who gives a false or fraudulent list or statement of his taxable personal property, which is required by law to be listed, when called on for that purpose. It provides that the penalty may be recovered in any proper form of action, by the State of Indiana, on the relation of the prosecuting attorney, who is required to prosecute the offender to final judgment and execution, and who is allowed a commission of ten per cent. on all moneys collected, and a docket fee of ten dollars to be taxed and collected as costs.
This proceeding was instituted in the Washington Circuit Court by the prosecuting attorney, who filed a claim in the name of the State of Indiana, on his own relation, against the estate of John A. Bowman, deceased, in which it was charged that the decedent had given to the assessor of the township in which he resided a false and fraudulent list of his personal property for taxation in the years 1885 and 1886. The administrator prosecutes this appeal from a judgment assessing a penalty of $ 920 against the estate of the decedent.
It is insisted that the cause of action died with the death of Bowman, that it is not within the statute regulating the survivorship of actions, and that the court therefore erred in entertaining it as a claim against the decedent's estate. Qui tam actions at common law--which were in their essential characteristics the same as the one under consideration--were those given by act of Parliament for the recovery of a penalty or forfeiture for the neglect of some duty or the commission of some crime. They were recognized as civil actions, or informations to recover the penalty, in the name of the sovereign, at the suit of an individual, who might prosecute as well for the king as for himself. 1 Bacon Abridgment, p. 88. The action was not to recover damages sustained by the plaintiff, but for penalties incurred by the defendant. They were in the nature of civil informations or suits, and the common law remedy was an action of debt. Western Union Tel. Co. v. Scircle, 103 Ind. 227, 2 N.E. 604, and authorities cited; Durham v. State, ex rel., 117 Ind. 477, 19 N.E. 327. Statutory penalties are ordinarily in the nature of a punishment prescribed by law for the non-performance of an act, or for the performance of an act in an unlawful manner, and in some cases the penalty stands in lieu of the act to be performed. San Luis Obispo v. Hendricks, 71 Cal. 242, 11 P. 682.
Penalty involves the idea of punishment, and whether it is inflicted in a civil or criminal prosecution, its character is not changed. It may involve the payment of a sum of money or personal suffering. United States v. Chouteau, 102 U.S. 603, 26 L.Ed. 246; The Strathairly, 124 U.S. 558. Nevertheless, debt lies for a statutory penalty, because the sum demanded is in the nature of a fixed or liquidated liability for a wrong done. Chaffee v. United States, 85 U.S. 516, 18 Wall. 516, 21 L.Ed. 908; State, ex rel., v. Stevens, 103 Ind. 55, 2 N.E. 214.
Although by the common law the action was in the nature of a civil information for a debt, qui tam actions on penal statutes were nevertheless designated as actions ex delicto, sounding in tort, and were therefore within the common law maxim which declared that all personal actions were extinguished by the death of the tortfeasor. The common law rule prevails generally in the United States, and actions to recover penalties prescribed by statute can not be maintained against the personal representative of a deceased wrongdoer, except in cases where the survivorship of such actions is controlled by statute. Schreiber v. Sharpless, 110 U.S. 76, 28 L.Ed. 65, 3 S.Ct. 423; Stokes v. Stickney, 96 N.Y. 323; Jones v. Vanzandt, 4 McLean, 604.
It is provided by statute that "In all cases where actions survive, they may be commenced by or against the representatives of the deceased to whom the interest in the subject-matter of the action has passed." Section 281, R. S. 1881. The statute also declares, in effect, that all actions which arise out of an injury to the person die with the person of either party, except in certain specified cases. Section 283 declares that all other causes of action survive, and may be brought against the representatives of the deceased party, except actions for promises to marry.
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