Omaha & Republican Valley Railway Company v. Hale

Decision Date18 June 1895
Docket Number6001
Citation63 N.W. 849,45 Neb. 418
PartiesOMAHA & REPUBLICAN VALLEY RAILWAY COMPANY v. JAMES B. HALE
CourtNebraska Supreme Court

ERROR from the district court of Lancaster county. Tried below before HALL, J.

Judgment of the district court reversed and the action dismissed.

J. M Thurston, W. R. Kelly, and E. P. Smith, for plaintiff in error:

The plaintiff in error insists that this action cannot be maintained, because, in this state, no officer is known as an informer, nor is power given to any person as such; and, in the section upon which this action is predicated, no authority is given to any person to commence suit in his own behalf, or for himself and any second party, to recover therein the penalty, or any portion thereof, mentioned in the statute. (Foster's Case, 6 Coke, [Eng.], 56; State v Sinnot, 15 Neb. 472; Iler v. Cronin, 34 Neb 424; Graham v. Kibble, 9 Neb. 182; Stone v. Lannen, 6 Wis. 485; Shields v. Klopf, 70 Wis. 69; City of Hastings v. Thorne, 8 Neb. 160; City of Tecumseh v. Phillips, 5 Neb. 312; State v. City of Lincoln, 6 Neb. 12; State v. Herns, 14 Neb. 477; Fleming v. Bailey, 5 East [Eng.], 313; Barnard v. Gostling, 2 East [Eng.], 569; Davis v. Edmonson, 3 B. & P. [Eng.], 382; Colburn v. Swett, 1 Met. [Mass.], 232; Smith v. Look, 108 Mass. 139; Wheeler v. Goulding, 13 Gray [Mass.], 539; Nye v. Lamphere, 2 Gray [Mass.], 295; Lynch v. Steamer "Economy," 27 Wis. 69; United States v. Laescki, 29 F. 701; State v. Hannibal & St. J. R. Co., 1 S.W. [Mo.], 134; Arzbacher v. Mayer, 53 Wis. 380; Willard v. Reas, 26 Wis. 540; Willard v. Comstock, 58 Wis. 565; Neville v. Clifford, 55 Wis. 161; St. Louis, A. & T. R. Co. v. State, 19 S.W. [Ark.], 573; Otis v. Thorne, 18 Ala. 395; Davis Avenue R. Co. v. Mallon, 57 Ala. 168; Dubbers v. Goux, 51 Cal. 154.)

Pound & Burr and Roscoe Pound, contra, cited as to right of James B. Hale to maintain the action: Chicago & A. R. Co. v. Howard, 38 Ill. 414; Drew v. Hilliker, 56 Vt. 641; Winne v. Snow, 19 F. 507; Middleton v. Wilmington & W. R. Co., 95 N. Car., 167; Commonwealth v. Howard, 13 Mass. 222; State v. Bishop, 7 Conn. 181; State v. Smith, 49 N. H., 155; Vandeventer v. Van Court, 2 N.J.L. 155; Mitchell v. State, 12 Neb. 538; Doss v. State, 6 Tex. 433; Caswell v. Allen, 10 Johns. [N. Y.], 118; Wardens v. Cope, 2 Ired. [N. Car.], 44; Rayham v. Rounseville, 9 Pick. [Mass.], 44; Cincinnati, S. & C. R. Co. v. Cook, 37 Ohio St. 265.

W. H. Woodward, for Lancaster county.

OPINION

See opinion for statement of the case.

RAGAN, C.

James B. Hale, suing for himself and the state of Nebraska, brought this suit in the district court of Lancaster county against the Omaha & Republican Valley Railway Company to recover the penalty denounced by section 104, chapter 16 Compiled Statutes, 1893, against corporations owning railroads that had neglected to sound a whistle or ring a bell at railroad and street crossings. The petition contained seventy-six causes of action, substantially alike, and prayed judgment as follows: "Wherefore the plaintiff prays judgment against the defendant for the sum of $ 3,800 and costs of suit." Hale had a verdict and judgment, and the railroad company has prosecuted to this court a petition in error. The section of the statute on which this action is based (said section 104) is as follows: "A bell of at least thirty pounds weight or a steam whistle shall be placed on each locomotive engine, and shall be rung or whistled at the distance of at least eighty rods from the place where the said railroad shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of fifty dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer, and the other half to this state, and also be liable for all damages which shall be sustained by any person by reason of such neglect." Can the informer mentioned in said statute maintain an action in his own name to recover the penalty provided for therein? There seems to be some conflict among the authorities on this question.

In United States v. Laescki, 29 F. 699, it was held that such an action must be brought in the name of the informer, and that the penalty could not be recovered by indictment at the instance of the government. But the statute on which that action was predicated provided: "Every person who violates this section shall be liable to a penalty of one hundred dollars, recoverable, one-half to the use of the informer." The word "recoverable" in this statute would seem to authorize a suit for the penalty by the informer.

The Chicago & A. R. Co. v. Howard, 38 Ill. 414, was an action brought by Howard, suing for himself and the state of Illinois, against the railroad company. The statute on which the action was based provided that if the railroad company should fail to sound a whistle or ring a bell, etc., "it shall forfeit a penalty of fifty dollars, one-half to the informer and the other half to the state." It is to be observed that this statute is almost identical with ours. The court held that the suit was properly brought in the name of Howard.

In Lynch v. Steamer "Economy," 27 Wis. 69, it was held that the informer might maintain an action in his own name for the penalty. The court said: "The action is evidently a qui tam action, and, we are inclined to hold, may be brought in the name of the complainant (informer) alone. It is a general rule that a common informer cannot sue for a penalty unless authorized so to do by statute; but many cases hold, where the statute gives the forfeiture, or a part of it, 'to any person who shall prosecute therefor,' that this, or equivalent language, confers express authority upon him to sue in his own name. * * * But if there were any doubt upon this point, it is removed by the language making the penalty a demand or lien against the boat, 'to be sued for and collected in the manner provided' for the collection of demands against boats and vessels. This language, we think, shows that the statute contemplated that the complainant (informer) should be the plaintiff in the action, and that the proceeding should be analogous to an ordinary suit for the collection of a demand against a vessel."

The statute of Arkansas provided that railroad companies should cause a whistle to be sounded or bell rung, etc., "under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county," etc. One Bell sued in his name, for the use of the state of Arkansas and Miller county, a railroad company to recover the penalty provided for by said statute. The court said: "The demurrer to the complaint was properly sustained, as it showed that the plaintiff was not, and that the state was, the party entitled to prosecute the action." (St. Louis, A. & T. R. Co. v. State, 19 S.W. 572.)

In Nye v. Lamphere, 2 Gray 295, the court sustained a suit brought by an informer in his own name to recover a statutory penalty, but the statute on which the action was based provided that the penalty was "'to be recovered in any court proper to try the same, one-half to the use of the said town and the other half to any person who shall prosecute therefor.'" This statute expressly conferred authority on the informer to prosecute the action. The court sai...

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