Nebraska Nat. Bank v. Walsh
Decision Date | 17 November 1900 |
Citation | 59 S.W. 952 |
Parties | NEBRASKA NAT. BANK v. WALSH. |
Court | Arkansas Supreme Court |
Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge.
Action by the Nebraska National Bank against one Walsh. From a judgment for defendant, plaintiff appeals. Reversed.
Rose, Hemingway & Rose, for appellant. John M. Moore and J. A. Watkins, for appellee.
This is an action by appellant against appellee for the statutory liability arising upon the following sections of the Digest:
The defendant pleaded the statute of limitations. The case was tried before the court, which, upon the evidence, made the following findings:
Judgment was entered accordingly, and this appeal duly prosecuted.
The statute is as follows: "All actions upon penal statutes, where the penalty, or any part thereof, goes to the state or any county or person suing for the same, shall be commenced within two years after the offense shall have been committed, or the cause of action shall have accrued."
1. The prime object of every statute strictly penal is to enforce obedience to the mandates of the law, by inflicting punishment upon those who disregard them; and in statutes primarily and properly penal the provision for punishment never rests in uncertainty, — is never based upon a contingency. The general public is supposed to be injured by the violation of every penal statute, whether any special injury results to any particular individual or class of individuals or not. The punishment is provided as a sanction to the law, and is imposed for the public good, to deter others from the commission of like offenses. It would therefore be palpably incongruous to call a statute penal which did not contain a definite and certain provision for punishment in every case where the duties enjoined by it were ignored. Black, Law Dict., "Penal Statutes," "Penal Laws"; Bouv. Law Dict., "Penal Statutes"; Potter, Dwar. 74. Measured by these simple but infallible tests, the statute upon which this action was based is not penal. Here the behests of the law may be ignored repeatedly by the officers failing to file the certificate required, and still no unpleasant or severe consequences would be visited upon them, unless there were creditors who had debts contracted with the corporation during the time of such disobedience. And even then the officers could be made to pay only at the instance of these creditors, and not by them if the debts had already been paid by the corporation. This shows conclusively that the public in general is not one whit interested in the enforcement of the duties enjoined by this statute, and that punishment of the officers for failure to perform the duties it prescribes is not the dominant idea. The duty which the statute enjoins upon, and the liability which it creates against, the officers, is in favor of creditors. The measure of the liability is the amount of the debts which the corporation has incurred. There is no arbitrary amount fixed as a pecuniary mulct against the officers for each failure to file the certificate required. The amount is fixed for compensation and indemnity, as the actual amount due the creditors. No additional sum is allowed them against the officers. They are only required to pay to prevent a loss which would otherwise result directly or indirectly from their neglect or failure. "By the principles of the common law," says Judge Thompson, 3 Thomp. Corp. § 4164. The liabilities created and the remedies provided by this statute are private and civil. There is nothing in the mere wording to give it a penal cast, which of itself is persuasive. We conclude from these considerations that the statute is not penal, but highly remedial, even when construed independent of the statute of limitations.
2. But when viewed, as we must view it here, in connection with that statute, the correctness of the above conclusion seems all the more obvious. The statute of limitations was modeled after 31 Eliz. c. 5, § 5. According to the familiar rule which we have often followed, where a statute is borrowed from another jurisdiction, where it has received definite construction, it is taken with the construction which had there been placed upon it. Up to 1838, when our statute...
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Hospelhorn v. Corbin
...Burke, 196 Ark. 1028, 120 S.W.(2d) 705; Vandover Lumber Underwriters, 197 Ark. 718, 126 S.W.(2d) 105; Nebraska Nat. Bank Walsh, 68 Ark. 433, 440, 59 S.W. 952, 82 Am.St.Rep. 301; Converse Hamilton, 224 U.S. 243, 257, 32 S.Ct. 415, 56 L.Ed. 749, Ann. Cas. 1913D, 1292; 7 Am.Jur. 81; 9 C.J.S. 1......