The State ex rel. Scobey v. Stevens

• Decision Date: 17 September 1885
• Docket Number: 10,949
• Citation: 2 N.E. 214,103 Ind. 55
• Parties: The State, ex rel. Scobey, v. Stevens et al
• Court: Indiana Supreme Court

2 N.E. 214

103 Ind. 55

The State, ex rel. Scobey, v. Stevens et al

No. 10,949

Supreme Court of Indiana

September 17, 1885

From the Decatur Circuit Court.

Judgment reversed, with costs.

J. S Scobey, for appellant.

J. D Miller and F. E. Gavin, for appellees.

Mitchell C. J. Elliott, J.

OPINION

Mitchell, C. J.

The relator brought this suit on the official bond of Stevens, who was formerly clerk of the Decatur Circuit Court. The action was based on section 6031, R. S. 1881. This section enacts that "Any officer who shall charge, demand, or take any fee for any official act done or performed under the provisions of this act, other than as is herein allowed and provided for, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined in any sum not exceeding one hundred dollars, and shall be liable on his official bond to the party injured for five times the illegal fees charged, demanded, or taken, and the same may be recovered, with costs, in the circuit court."

It is charged that the defendant Stevens, having been elected and qualified as clerk, took upon himself the duties of that office on the 1st day of November, 1875, and continued therein until the expiration of his term; that, on the 6th day of February, 1877, a civil suit was commenced against the relator in the Decatur Circuit Court, which continued pending until the 31st day of July, 1879, when it was dismissed at his costs; that upon the dismissal of the suit, Stevens made up and taxed the costs for his services as clerk on the fee books of the court, and that of the costs so taxed there was included, in various specified items, the sum of $ 20 in excess of his legal charges, which, on the 29th day of May, 1882, he demanded of the relator, and for which he issued a fee bill, on the 5th day of June, 1882. The relator prays judgment for $ 100, being five times the amount of the fees alleged to have been illegally charged and demanded.

The court below sustained a general demurrer to the complaint, and the case comes here on this ruling.

It is argued by the learned counsel for the appellee, that so much of the statute as authorizes the recovery of five times the illegal fees charged, in a suit by the injured party on the official bond of the officer, is unconstitutional, as being within the prohibition of that part of the Bill of Rights which declares that "No person shall be put in jeopardy twice for the same offence." The extent of the argument on this point is the statement of the proposition by counsel for the appellee, and the citation in its support of Koerner v. Oberly, 56 Ind. 284 (26 Am. Rep. 34). In the appellant's brief we find no allusion to the question. This leads us to conclude that the ruling below must have turned upon some other point. As the question is presented for decision, it would have been a source of satisfaction to the court if the learned counsel on both sides had favored us with such argument of it as their learning and ability led us to expect. Whatever may be said of the case above cited, we do not think it controls the decision of the one before us. That was a suit brought by a wife to recover damages for an unlawful sale of intoxicating liquor to her husband, who was in the habit of becoming intoxicated. Section 12 of the act of 1873, Acts 873, p. 151, gave a right of action against any person so offending in favor of any person who should be injured thereby in person, property or means of support. It authorized a recovery by any person so injured of all damages which might be sustained, "and for exemplary damages." The same act made it a misdemeanor for any person to sell intoxicating liquor to a person in the habit of becoming intoxicated, and provided a penalty to be enforced by indictment or otherwise. It was held in the case relied on, that in so far as section 12 attempted to authorize the recovery of exemplary damages by the injured person, it was in conflict with the provision in the Bill of Rights above quoted, and therefore inoperative and void.

It has been the settled rule of decision in this State since the case of Taber v. Hutson, 5 Ind. 322, that in all that class of torts, for which, in addition to the civil remedy allowed to the injured party, the wrong-doer was amenable to criminal punishment, exemplary or punitory damages could not be recovered in a civil action; while, in the class not rising to the degree of criminality, the injured party might, where the elements of fraud, malice, gross negligence or oppression mingled in the controversy, in addition to full compensation for all other damages, recover what is termed exemplary or punitive damages. Lytton v. Baird, 95 Ind. 349; Stewart v. Maddox, 63 Ind. 51, and cases cited.

As defined, compensatory damages are held to include not only such pecuniary loss or injury in a given case as is capable of approximately accurate calculation, but in addition thereto such a sum as may be supposed adequate to compensate "for injury to business or profession, reputation or social position, and for physical suffering, as bodily pain, permanent disfiguration," etc., "and for mental trouble, as anguish of mind, sense of shame or humiliation, loss of honor," etc., "all of which are considered compensatory, and not exemplary or punitive damages."

Exemplary or punitive damages, the terms exemplary and punitive being synonymous, are damages allowed as a punishment, or by way of example, to deter others from the like offences, for torts committed with accompanying fraud, malice or oppression.

The rule of decision defining the class of cases in which exemplary damages would, and that in which such damages would not, be allowed, rests wholly on judicial construction, and, except in the cases of Koerner v. Oberly, supra, and Schafer v. Smith, 63 Ind. 226, which involved the same statute, and followed the first named case, none of the cases in which the rule is declared and applied involve any question of legislative power.

Previous to the decision in the Koerner case, the court seemed to regard the constitutional provision referred to as an obstacle against its power to allow, or at least against the policy of allowing, exemplary damages in the class of cases where the defendant was also subject to criminal punishment. While the question of power was not in any case, so far as we know, directly determined, the prevailing rule was adopted by the court as being in consonance with the spirit of both the constitutional provision and the ancient common law maxim, and as a safe middle ground in a controversy with which courts and lawyers are familiar.

In Koerner v. Oberly, supra, it was distinctly ruled that the Legislature was prohibited by the Constitution from authorizing the infliction of exemplary damages for a wrong which was also punishable as a crime.

Whatever may be thought of the rule, so far as it rests on judicial construction, in the opinion of the writer, it is not the part of it which denies the infliction of punitory damages in some cases that is open to criticism, so much as that which permits it in any civil case. The assumption that the penal code should be supplemented by quasi judicial legislation, so as to allow damages to the injured party by way of punishment of the wrong-doer, in cases where none is inflicted by legislative enactment, is, as it would seem, much less defensible than the denial either to the courts or Legislature of the right to add unlimited damages as a punishment in civil cases where a prescribed punishment is already attached to the offence.

Whether the provision that "No person shall be put in jeopardy twice for the same offence" has technical application to the infliction of punishment by way of exemplary damages in civil cases, so as to prohibit it, has been the subject of much learned discussion.

In Taber v. Hutson, supra, after suggesting that to allow exemplary damages might expose the defendant to double punishment, in violation of the spirit of the Bill of Rights, it was said that "though that provision may not relate to the remedies secured by civil proceedings, still it seems to illustrate a fundamental principle inculcated by every well regulated system of government, viz., that each violation of the law should be certainly followed by one appropriate punishment and no more."

In the case of Brown v. Swineford, 44 Wis. 282 (28 Am. Rep. 582), Ryan, C. J., impliedly admitting that the rule which allowed exemplary damages in such cases was against the spirit of the maxim that no one should be twice vexed for the same offence, said: "The word jeopardy is therefore used in the Constitution in its defined, technical sense at the common law. And in this use it is applied only to strictly criminal prosecutions by indictment, information or otherwise." Expressing marked disapprobation of the rule, the learned court nevertheless held that a constitutional provision, similar to that under consideration, did not stand in the way of allowing exemplary damages in civil suits, even when the act complained of was punishable as a crime. So, in the case of Elliott v Van Buren, 33 Mich. 49 (20 Am. Rep. 668), speaking upon this subject Campbell, J., said: "The argument that a person is thereby punished twice within the constitutional and common law rules is, in our opinion, entirely fallacious. The maxim at common law, that no one shall be twice vexed for the same cause, where it applied at all, prevented a second prosecution as well as a second punishment, and if it applied to civil damages would cover the whole, and not merely what is assumed to be a part of them. But there is no analogy between the civil and criminal remedies. The punishment by criminal prosecution is to redress the...