Graham v. Kibble
| Decision Date | 30 September 1879 |
| Parties | JOHN W. GRAHAM, PLAINTIFF IN ERROR, v. JOHN KIBBLE AND OTHERS, DEFENDANTS IN ERROR. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Error from the district court for Merrick county.
Abbott & Caldwell, for plaintiff in error.
John Patterson, for defendants in error.
This action was brought in the court below, by the defendants in error, to recover the statutory forfeiture for taking illegal fees, under section 37, c. 22, Gen. St., which is as follows: “If any officer whatever, whose fees are herein expressed and limited, shall take greater fees than are hereinbefore limited and expressed for any service to be done by him in his office, or if any such officer shall charge or demand and take any of the fees hereinbefore ascertained and limited, where the business for which such fees are chargeable shall not be actually done or performed, such officer shall forfeit and pay to the party injured fifty dollars, to be recovered as debts for the same amount are recoverable at law.”
The court below, on issue joined, having found in favor of the plaintiffs, (the defendants in error,) the defendant brings the case to this court by petition in error.
In their brief counsel for the plaintiff in error say that they rely on five of the errors assigned in the petition for a reversal of the judgment. Three of them, the first, second and fifth, being in substance indentical, will be treated together. They go to the sufficiency of the facts alleged to constitute a cause of action. In support of these three objections it is urged that this section of the statute is wholly inoperative and void, by reason of its being hostile to section 5, art. 8 of the constitution of this state, which is as follows:
While the position taken by counsel in this behalf is plausible, and is enforced by a former decision of this court, we are not now prepared to sustain them in it. On mature reflection we are not prepared to say, nor do we think it was intended by this provision of the constitution to deprive the legislature of the power to pass statutes like the one in question, whereby a fixed sum, in the nature of liquidated damages, is given to one who has suffered injury by the wrongful act or oppression of a public officer.
It may be true that such statutory allowance is much in excess of the actual loss sustained, or injury done, and, therefore, to the extent that it is so, in its effect upon the offending officer, is in the nature of a penalty. But the power of the legislature to fix the maximum, or even the exact amount recoverable by a private person sustaining injury, or that shall accrue to the public, in case of official delinquency, cannot be successfully questioned. Indeed, it has been said by an able law writer, in support, or rather in commendation, of such legislation, that “a uniform measure of damages, under the same substantial state of facts, is desirable, even if the rule therefor be arbitrary.” Field's Law of Damages, § 17. This section of the constitution, as we understand it, has no reference to those damages, whether limited in the amount recoverable or not, which a private person may sustain, but solely to such as under the law of the land are given to the public, and go into the public treasury. Its object, doubtless, was to correct what was considered abuses in the disposition of public moneys realized from the several...
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