Dyer v. Ellington

• Decision Date: 09 June 1900
• Citation: 126 N.C. 941,36 S.E. 177
• Parties: DYER. v. ELLINGTON et al.
• Court: North Carolina Supreme Court

126 N.C. 941

36 S.E. 177

DYER.

v.ELLINGTON et al.

Supreme Court of North Carolina.

June 9, 1900.

PENALTY—PENDING ACTION—ACT RELIEVING DEFENDANTS—EFFECT.

Code, § 3816, requires commissioners of towns to publish certain statements of taxes and expenditures, under penalty of $100, to any person who shall sue therefor. Plaintiff sued defendants, commissioners of L., for such penalty; and while the action was pending, and before judgment, the legislature passed Pub. Laws 1899, c. 349, releasing such commissioners of L. from any and all penalties for failure to comply with section 3816. Code, § 3764, provides that the repeal of a statute shall not affect any action brought before repeal for any forfeitures incurred or rights accruing under such statute. No other similar action was pending against defendants. Held, that as section 3816 created no contract between plaintiff and the state, and as the relieving act was not a repeal thereof, within the meaning of section 3764, and as the latter section was but a rule of construction, plaintiff's cause of action was destroyed by the relieving act before he obtained a vested right to the penalty, and hence his suit could not be maintained.

Appeal from superior court, Rockingham county; Shaw, Judge.

Action by W. F. Dyer against R. R. Ellington and others, commissioners of the town of Leaksville. From a judgment in favor of plaintiff, defendants appeal. Reversed.

This was a civil action tried before his honor, Thomas J. Shaw, at August term of the superior court of Rockingham county, 1899, brought before a justice of the peace in Leaksville township, for the purpose of recovering a penalty of $100 against the defendants named in the caption for failure, as commissioners of the town of Leaksville, to publish, as required by section 3816 of the Code, a statement of taxes levied and collected in j said town, together with a statement of the amounts expended by them, and for what pur-j pose, during the year 1897, and by due appeal was brought to the superior court, where a trial by jury was waived, and, by consent, his honor found the facts which appear in the judgment. Upon the facts found, the defendants moved for judgment, and the motion was disallowed, and his honor rendered the following judgment: "This cause coming on to be tried before Shaw, J., a jury trial having been waived, by consent of the plaintiff and defendants, the court finds the following facts: (1) That the town of Leaksville, in Rockingham county, was, on the 1st day of May, 1897, a municipal corporation, having been duly incorporated by the general assembly of North Carolina at its session of 1873-74 (chapter 133, Priv. Laws). (2) That on the first Monday in May, 1897, the defendants were duly elected as commissioners for said town, and on the 5th day of May, 1897, were duly qualified as such, and at once entered upon the discharge of their duties, and that their said term of office ended on the——day of May, 1898. (3) That the defendants, during their term of office as aforesaid, levied and collect ed taxes in and for the said town of Leaksville, and disbursed the same. (4) That the defendants did not publish, as required by section 3816 of the Code, a statement of the taxes levied and collected in said town during their said term of office, nor did they publish any statement of the amount expended by them, and for what purpose, during their said term, as provided by law. (5) That on the 8th day of February, 1899, the plaintiff instituted this action against the defendants to recover the penalty of one hundred dollars ($100), as provided by section 3816 of the Code. (6) That while said action was pending in the court of the justice of the peace before whom it was brought, and before it was tried, the general assembly of North Carolina, on the 2Sth day of February, 1899, passed an act entitled 'An act for the relief of the commissioners of the town of Leaksville, in Rockingham county, North Carolina, ' which said act, as contained in chapter 349, Pub. Laws 1899, is hereby referred to and is made a part of this finding of fact (7) That this was the only action pending against the defendants at the time of the passage of the aforesaid act, and no other action had been brought by any person to recover the penalty sued for in this action. This fact found upon admission of counsel upon the trial. Upon the foregoing facts it is adjudged by the court that the plaintiff recover of the defendants, D. R. Ellington, W. S. Williams, and J. M. Hopper, the sum of one hundred dollars ($100), and interest on the same from the 28th day of February, 1899, until paid, and the costs of this action, as a penalty for their failure, as commissioners of the town of Leaksville, to publish, as provided by law, an annual statement of the receipts and disbursements for the...