State v. Marietta & N.G.R. Co.

• Citation: 12 S.E. 1041,108 N.C. 24
• Parties: STATE ex rel. HODGE v. MARIETTA & N. G. R. Co. et al.
• Decision Date: 25 March 1891
• Court: United States State Supreme Court of North Carolina

12 S.E. 1041

108 N.C. 24

STATE ex rel. HODGE v. MARIETTA & N. G. R. Co. et al.

Supreme Court of North Carolina

March 25, 1891

Appeal from superior court, Wake county; MACRAE, Judge.

Demurrer to a complaint having been sustained, and permission to amend not having been requested or granted, the action is properly dismissed.

Armistead Jones and R. O. Burton, Jr., for appellant.

Battle & Mordecai, Fuller & Snow, Batchelor & Devereux, A. W Haywood, G. V. Strong, F. H. Busbee, and J. W. Hinsdale, for appellees.

CLARK J.

We concur in the conclusion reached by the learned judge who tried this cause below. The statute prescribing the penalty sued for in this action (Code, § 1960) is as follows "Any such corporation [railroad] which shall neglect to make the report as provided in the preceding section, [1959,] shall be liable to a penalty of five hundred dollars, to be sued for in the name of the state of North Carolina, in the superior court of Wake county." The constitution (article 9, § 5) provides that "the clear proceeds of all penalties and forfeitures," etc., shall be "faithfully appropriated for establishing and maintaining free public schools." It is immaterial as to this action whether by this clause of the constitution all penalties are appropriated to the public schools without power in the legislature to give the penalty in any case to "the party suing for the same," or to "the party aggrieved," or whether the true construction is that the constitutional provision devotes to the school fund such penalties and forfeitures only as by the several statutes imposing them shall accrue to the state, as was held in Katzenstein v. Railroad Co., 84 N.C. 688, and we leave that question open. However that may be, the penalty here, in any event, goes to the state. The act creating it (Code, § 1960, supra,) does not contemplate that any private person may sue for and recover the penalty. The act is to enforce a duty in which the public generally is interested and as to which there could be properly no "person aggrieved." It requires the penalty "to be sued for in the name of the state of North Carolina, in the superior court of Wake county." This is a clear expression, as it seems to us, of the legislative intent that the penalty should be sued for and recovered by the state. If, on the contrary, it had been intended to give the penalty to any person who would sue therefor, the statute would either have so stated, or would have imposed the penalty without further provision. In the latter case there might have been ground for the plaintiff's contention that, by virtue of Code, § 1212, he is entitled to recover it. That section enacts that when the act imposing a penalty does not provide "to what person the penalty is given, it may be recovered by any one who will sue for the same, and for his own use." But here the statute imposing the penalty provides for its recovery by the state, and the constitution devotes such penalties and forfeitures to the school fund. In this court the county board of education of Wake asked to be substituted as relator, or as party plaintiff, under provisions of Code, § 965. This court has power to make such substitution of parties in proper cases, (Grant v. Rogers, 94 N.C. 755; Wilson v. Pearson, 102 N.C. 290, 9 S.E. Rep. 707,) provided the opposite party is put to no disadvantage, (Justices of Tyrrel v. Simmons, 3 Jones, (N. C.) 187; Grant v. Rogers, supra.) The amendment cannot be al lowed, because the law confers no right upon the county board of education of Wake to maintain the action. That right is vested solely in the state, and it has not asked to be substituted as a party. The demurrer to the complaint having been sustained, the usual course is to dismiss the action, unless plaintiff asks and is allowed to amend. Netherton v. Candler, 78 N.C. 88. Such was not the case here. The judgment dismissing the action is affirmed.

SHEPHERD, J., concurs.

AVERY, J., (concurring.)

I concur in the opinion of Justices SHEPHERD and CLARK, but I do not wish to be misunderstood as indorsing the principle laid down in Katzenstein v. Railroad Co., 84 N.C. 688. Should a case be presented involving the question whether the whole of a penalty can be given by statute to an informer, I should be in favor of overruling the doctrine established in that case. I am not willing to concede that a constitutional provision, made by the people in convention assembled, can be restricted in its application because of the terms of some pre-existing statute, and, if the point should be raised in future, I should feel it my duty to give at length my reasons for withholding my assent to such a principle. For the present, I am content to state my legal conclusions. I think that the legislature may give one-half, or some other proportion deemed reasonable, as a reward to an informer, and the residue would then be the net proceeds which the constitution devotes to the school fund of the counties. I think that the net proceeds of all penalties collected in the courts of justices of the peace, criminal and superior courts, should be paid over to the treasurers of the counties to constitute a part of its school fund, while the penalties collected under town ordinances do not come within the constitutional provision, and may be given by law for the support of a city or town.

MERRIMON C.J., (concurring.)

The defendant failed to make the annual report to the governor required by the statute, (Code, § 1959,) for the year ending the 30th day of September, 1888. The relator brought this action in the name of the state to recover the penalty of $500, prescribed and allowed by the statute, (Id. § 1960,) in case of such failure. The defendant demurred to the complaint, and assigned as grounds of demurrer: "(1) That said complaint does not state facts sufficient to constitute a cause of action, in this. That upon the facts herein stated no cause of action hath accrued to the said W T. Hodge, under the laws of North Carolina, to demand and have of this defendant the sum of five hundred dollars, but that upon said facts a cause of action hath accrued to the state of North Carolina to demand and have of this defendant the said sum of five hundred dollars, to be faithfully appropriated for establishing and maintaining free public schools in the proper county or counties of this state, under section 5, art. 9, of the constitution of said state. (2) That it appears upon the face of said complaint that W. T. Hodge is not the proper relator of the plaintiff; that this action cannot be maintained by the state of North Carolina upon the relation of said W. T. Hodge." The court sustained the demurrer, and dismissed the action. The relator, having excepted, appealed to this court. In this court "the county board of education for the county of Wake" moved that it be a party plaintiff. The statute (Code, § 1959) requires every railroad company to make annual report to the governor of certain matters and things as therein prescribed, and it further provides (Id. § 1960) that "any such corporation, which shall neglect to make the report as provided in the preceding section, shall be liable to a penalty of five hundred dollars, to be sued for in the name of the state of North Carolina, in the superior court of Wake county." The relator contends that the penalty thus prescribed is not allowed in favor of any particular person or to be devoted to any specified purpose, but is allowed to any person who shall first sue for the same, and therefore he is entitled to maintain this action. He relies upon the statute, (Id. § 1212,) which prescribes that "when a penalty may be imposed by any law passed, or hereafter to be passed, and it shall not be provided to what person the penalty is given, it may be recovered by any one who will sue for the same, and for his own use." On the other hand, the defendant contends that such penalty belongs to the state to be devoted to the support of public schools, as required and directed by the constitution, (article 9, § 5,) which provides as follows: "All moneys, stocks, bonds, and other property belonging to a county school fund; also the net proceeds from the sale of estrays; also the clear proceeds of all penalties and forfeitures, and of all fines collected in the several counties, for any breach of the penalty or military laws of the state, and all moneys which shall be paid by persons as an equivalent for exemption from military duty,--shall belong to and remain in the several counties, and shall be faithfully appropriated for establishing and maintaining free public schools in the several counties of this state: provided, that the amount collected in each county shall be annually reported to the superintendent of public instruction." It is to be observed that the statute (Code, § 1960) above recited does not simply impose the penalty as therein provided. It provides, further, that it is "to be sued for in the name of the state of North Carolina in the superior court of Wake county." This provision is peculiar and unusual. It is not casual and meaningless; on the contrary, it is intended to serve an important public purpose. It fairly implies that the penalty, being intended to compel the performance of a duty imposed on railroad companies, affecting the state itself and its purposes, and therefore public in its nature, must be sued for in the name of and for the purposes of the state in the county where civil actions in which the state is solely interested are ordinarily brought and prosecuted. The statute is to be treated and understood as imposing the penalty, and directing an action to be brought in the name of and for the state by its proper officer, when a railroad company shall incur such penalty. The penalty...