Sutton v. Phillips
| Decision Date | 23 April 1895 |
| Parties | SUTTON v. PHILLIPS (three cases). |
| Court | North Carolina Supreme Court |
Appeals from superior court, Lenoir county; Boykin, Judge.
Three actions by James O. Sutton against John R. Phillips to recover two penalties for selling by weights and measures not tried by the standard, and for selling meat to plaintiff by less measure than the standard. Defendant appeals. Modified.
R. O Burton, for appellant.
N. J Rouse, for appellee.
While the courts have the power and it is their duty, in proper cases, to declare an act of the legislature unconstitutional it is a well-recognized principle that the courts will not declare that this co-ordinate branch of the government has exceeded the powers vested in it unless it is plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people. For several reasons, it is not clear that the act in question, which was not only re-enacted since the constitution of 1875 by the Code of 1883 (see sections 3841, 3842), but which has been recognized as valid and amended three times by the general assembly, first in 1889 (chapter 404), and again by the general assembly of 1893 (chapters 100, 207), is unconstitutional and invalid. Among these reasons are:
1. This court has heretofore recognized that acts like this, giving the penalty prescribed for a violation of the statute to any one (as to some designated person) who shall sue for the same, are constitutional. Ashe, J., for the court, in Katzenstein v. Railroad Co., 84 N.C. 688, expressly passes upon the point, and holds that such acts are not in contravention of article 9, § 5, of the constitution. In Hodge v. Railroad, 108 N.C. 24, 12 S.E. 1041 Merrimon, C.J., elucidates the point; and in his concurring opinion, on pages 30, 31, 32, 108 N. C., and page 104, 12 S. E., gives strong reasons for adhering to the former opinion of the court as rendered by Ashe, J. The constitution of Missouri (article 11, § 8) contains a clause almost identical with that of this state; and the supreme court of that state has uniformly held that it was not an inhibition upon the legislature to give the penalties to any person whom the act imposing the penalties might provide, and that the object of the constitutional provision was not to prohibit qui tam actions in future, but simply to provide that all penalties inuring to the state should go to the school fund. In view of these authorities in our state and elsewhere upholding the constitutionality of such acts which had been customarily passed, time out of mind, it cannot be said that this act is plainly and clearly unconstitutional. The doubt, if any, must be resolved in favor of the general assembly. In addition to these cases, directly in point, acts of the legislature giving the penalty, in whole or in part, to the person suing for the same, have been recognized as valid in numerous cases since the amended constitution of 1875; thus, in effect, approving the direct decisions: Branch v. Railroad, 77 N.C. 347; Keeter v. Railroad, 86 N.C. 346; Whitehead v. Railroad, 87 N.C. 255; Branch v. Railroad, 88 N.C. 570; Middleton v. Railroad, 95 N.C. 167; McGowan v. Railroad, Id. 417; McGowan v. Railroad, Id. 428; Hines v. Railroad Co., Id. 434; Williams v. Hodges, 101 N.C. 300, 7 S.E. 786; Cole v. Laws, 104 N.C. 651, 10 S.E. 172; and there are more than twice as many more. All of these were erroneously decided, and must be overruled, if the plaintiffs in them were now, by a new construction of the constitution, held not to have had a cause of action,--a defect which must have been noticed in this court, without exception below, if such defect had existed. Indeed, the case of Katzenstein v. Railroad, in which this court expressly held that the amendment to the constitution was not a restriction upon the legislature, prohibiting qui tam, or popular actions, as they are sometimes termed, has been cited as authority in no less than 12 cases.
The judicial construction of this provision has been uniform and frequently repeated. The legislative construction has been no less so. In the reply of the court to the governor as to the "Judicial Term of Office," 114 N.C. 923, 21 S.E. 963, on page 927, 114 N. C., and page 965, 21 S. E., the court says: "We rest our opinion of the construction of the constitutional provision upon the duty and propriety of adhering to the settled legislative construction, acquiesced in until a very recent period by the people acting in public and private capacities." By the same reasoning, the construction of this constitutional provision has had 10 times over "a settled legislative construction," which should be adhered to. Scarcely a single legislature since the convention of 1875 has passed which did not recognize the power and duty of the legislature in this particular by enacting or amending statutes conferring the whole or a part of penalties upon persons suing for the same. This has been acted on without question in that department of the government. So universally has it been "acquiesced in by the people in public and private capacities" that only once is it known to have been questioned by the pleadings in all the actions brought to collect penalties (Katzenstein v. Railroad, supra); and then, by an exceptionally able court,--Smith, Ashe, and Ruffin,--the legislative construction was unanimously sustained, and has been repeatedly and uniformly recognized since as the law in numerous cases, many of them above cited. It has thus 20 years' uniform construction by both the legislative and judicial departments, and should be deemed settled, if anything can be.
2. From time immemorial, in the English law, it has been found that qui tam actions--actions in which the penalty goes in whole or in part to the person suing for the same--were an efficient, and, indeed, sometimes an indispensable, means of enforcing the law in many cases, as for the breach or neglect of duty by officers and corporations; and parliament in England, and legislative bodies in this country, have freely enacted statutes for the enforcement of laws by such actions. There has been no agitation for the repeal of such statutes; and, if there had been a radical departure intended by the amendment of 1875 by which the general assembly would have been deprived of its power to authorize qui tam actions, such inhibition would have been clear and unmistakable, and would have been placed in the chapter relating to the legislative department, among the restrictions upon the exercise of legislative power. Const. art. 2, §§ 10, 11, 12, 14. Instead of that, this provision is found in article 9, upon education, and in the section transferring to the school fund certain sources of revenue, and among others is incidentally mentioned "also the clear proceeds of all forfeitures and penalties." It would be a strange construction that this incidental reference in the article on education was a reversal of the policy of hundreds of years, and a clear, distinct inhibition upon the legislature against permitting qui tam actions any longer, and an enactment that hereafter the state alone should recover penalties in civil actions. On the contrary, as already held by our court, and also by the Missouri court, upon an almost identical constitutional provision, the purport and true meaning of this clause of the constitution is not to vest the sole right to collect penalties in the state, but to vest in the school fund the clear proceeds of all penalties which by authority of law should be collected for the benefit of the state. It is best to stand super vias antiquas.
3. If the constitutional provision were clear that the general assembly was prohibited from any longer permitting qui tam actions or the collection of penalties by any one except the state, public policy could not be considered. But, when such restriction is not clearly shown, considerations of public policy may be invoked, on the ground that there was no great recognized evil or public agitation which called for so radical a departure as depriving the lawmaking power of its immemorial discretion to authorize the recovery of penalties by private persons, as it has done in section 3842 of the Code, or by official persons, as in section 3841 of the Code as well as in divers and sundry other statutes. Not only would this restriction upon the legislature virtually repeal the penalties prescribed for breaches of duty in these and similar cases, but it would virtually repeal all statutes providing penalties for delay in shipping freight, and other penalties for breach of duty by corporations, since penalties will be rarely sued for if there is no benefit to accrue to the party bringing the action. It would, indeed, be a virtual repeal of this long recognized and efficient mode of enforcing the law, and would leave its enforcement in effect solely to the criminal side of the docket, with its official prosecutors, and the benefit to the defendant of the preponderance of challenges, the protection of the doctrine of reasonable doubt, and the other advantages with which the law favors a defendant on trial for crime. Such change, not being called for by public policy, and such restriction...
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