Graham v. Kibble
| Decision Date | 01 July 1879 |
| Parties | JOHN W. GRAHAM, PLAINTIFF IN ERROR, v. JOHN KIBBLE AND D. L. GREINER, DEFENDANTS IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Merrick county. Tried below before POST, J. The facts appear in the opinion.
AFFIRMED.
Abbot & Caldwell for plaintiff in error.
Under sec. 37, Gen. Stat., 385, a penalty of fifty dollars is given to the party injured, to be recovered as debts of the same amount are recoverable by law, without reference to the amount of injury or overcharge, whether five cents or fifty dollars, hence there can be not a doubt it is a "penalty," arising under the general laws of the state. It is not intended as a compensation for the injury since the right of the party injured to recover such excess as may have been demanded or taken is nowhere taken away, and his remedy for such injury is full and complete, and the sum of fifty dollars is given in excess of and in addition to full compensation by way of suit to recover for the excess.
If this is a penalty, can it be given to a private individual by statute without violating the constitutional provision above cited? Clearly not. All fines, penalties, and license moneys arising under the general laws of the state are there declared to belong exclusively to the school fund. A. & N. R. R. Co. v. Baty, 6 Neb. 37. If our position is true, then it follows that there are not enough facts in the petition, the court should have admitted no evidence, the judgment is contrary to the law of the land, and should have been given for the defendant, now plaintiff in error. Under the third assignment of error we claim that a payment of money, claimed to be due as fees, accompanied by a promise on the part of the person receiving it, that "if not all right he will make it right," does not make the party guilty of the offense until a demand for the excess has been made and the party refuses to return it. Chendult v Walker, 15 Ala. N. S., 605. Baker & Walling v Richardson, 9 Cowen, 77.
Under the fourth assignment of error we were entitled to a finding as to the truth of the matters alleged in the second count of the answer, provided the facts stated therein are a defense, if true. The second count of the answer states substantially that defendant charged and received the sum of one dollar for going to the residence of bondsmen to verify their signatures and qualify them as to their sufficiency, at request of the plaintiffs, and that the sum so charged was reasonable. Evidence was offered and received without objection to prove the above facts. Those facts were a defense, if true. Runnells v. Fletcher, 15 Mass. 525. Walker v. Ham, 2 N.H. 238.
John Patterson, for defendant 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, chap. 22, Gen. Statutes, p. 385, which is as follows: "If any officer whatever, whose fees are hereinbefore expressed and limited, shall take greater fees than are so 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, when the business for which such fees are chargeable shall not be actually done and 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 for review.
In their brief counsel for the plaintiff in error say that they rely on five only of the errors assigned in the petition for a reversal of the judgment. Three of these, the first, second, and fifth, being in substance identical, 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. VIII, of the constitution of this state, which is as follows:
While the position taken by the 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...
To continue reading
Request your trial