Waddill v. Masten

• Decision Date: 29 November 1916
• Docket Number: (No. 370.)
• Court: North Carolina Supreme Court
• Parties: WADDILL. v. MASTEN et al.

(172 N.C. 582)

90 S.E. 694

WADDILL.

v.MASTEN et al.

(No. 370.)

Supreme Court of North Carolina.

Nov. 29, 1916.

Appeal from Superior Court, Forsyth County; Long, Judge.

Action by J. D. Waddill for the benefit of Forsyth County against H. W. Hasten, former register of deeds, and others. From a judgment dismissing the action, plaintiff appeals. Reversed.

The action was instituted by plaintiff on December 10, 1913, against H. W. Hasten, a former register of deeds of the county, for two terms, from December 1, 1908, to December, 1912, and his codefendant, surety on his bond, to recover for fees due the county of Forsyth to the amount of $6,000 or $7,000 which plaintiff alleged said Masten had collected or should have collected by virtue and color of his office and wrongfully withheld from the county. Plaintiff alleged, further, a demand and refusal on the part of the county commissioners to institute and maintain suit, etc.

On denial of liability, plea of settlement, release, etc., cause was referred by the court and referee, after a full hearing, reported that there were fees due county of Forsyth to the amount of $6,867.17 from H. W. Mas-ten, which he had received while in office, but ruled, among other things, as a conclusion of law, that the present action could not be maintained because chapter 80, Public Laws 1913, authorizing such suit to be instituted and maintained by a citizen and taxpayer of the county, was prospective in its operations, and did not apply to the facts of the present case. To this report the plaintiff excepted, in terms as follows:

(2) "That the referee erred in finding that this action cannot be maintained by the plaintiff as instituted, because chapter 80 of the Public Laws of 1913 is not retrospective in its effect, and cannot apply to settlements made between the defendant and the board of county commissioners during the year of his incumbency or amount paid to the defendant H. W. Masten by the board of commissioners of Forsyth county for making out the tax receipts."

(3) "That the referee erred in failing to find as a conclusion of law that, independent of chapter 80 of the Public Laws of 1913, the plaintiff, as a citizen and taxpayer of Forsyth county, had a common-law right to institute and prosecute this action in his own name for the benefit of Forsyth county."

The court entered judgment "overruling these exceptions, " and in effect dismissing the action, and plaintiff excepted and appealed.

A. H. Eller and Gilbert T. Stephenson, both of Winston-Salem, for appellant. Benbow, Hall & Benbow, Watson, Buxton & Watson, and A. E. Holton, all of Winston-Salem, for appellee Masten.

Hastings & Whicker, of Winston-Salem, for appellee Guaranty Co.

HOKE, J. Under chapter 436, Laws 1905, the principal county officers of Forsyth county are to be compensated by salary and the fees collected over and above the salary allowed become the property of the county. The defendant Masten was the duly qualified and acting register of deeds of Forsyth county from December 1, 1908, to December 1, 1912, the other defendant being his surety and plaintiff, a citizen and taxpayer of the county, having first made demand on the county commissioners to act, etc., instituted the present suit, alleging that said defendant Masten wrongfully withheld from the county $6,000 or $7,000 of fees which he collected or should have collected during his term of office.

On denial Of liability, the cause was referred by the court, and the referee, having heard the evidence, reports that said Masten is indebted to the county of Forsyth in the sum of $6,867.17, by reason of fees collected by him or which he should have collected during his term of office, but ruled, as a conclusion of law, that the present action, could not be maintained because the statute (chapter 80, Laws 1913), authorizing any citizen or taxpayer to bring such suit, having first made demand thereto on the county commissioners is prospective in its operation, and does not apply to the present case.

The general rule is fully recognized with us that a statute will be given prospective effect only, unless the law in question clearly forbids such a construction. Mann v. Allen, 171 N. C. 219, 88 S. E. 235; Elizabeth City v. Commissioners, 146 N. C. 539, 60 S. E. 416. A retrospective law, however, within the meaning of the principle, is one that, in some way, affects the rights and liabilitiesof parties incident to and growing out of a transaction that has passed. In case of remedial legislation, the general rule is not so insistent, and such statutes are not infrequently given retrospective effect where the language permits and such a construction will best promote the meaning and purpose of the Legislature. Connecticut Mutual Life Insurance Co. v. Talbot, 113 Ind. 373, 14 N. E. 586, 3 Am. St. Rep. 655; Ex parte Buckley, 53 Ala, 42; People ex rel. Collins v. Spicer, 99 N. Y. 225, 1 N. E. 680.

And well-considered authority is to the effect that the rule does not prevail as to statutes concerning mere matters of court procedure and before action instituted nor to the substitution or designation of new parties deemed necessary to a proper determination of a controversy or, as in this case, duly authorized to maintain and enforce a recognized or existent right. These positions, both as to remedies and parties, are approved in Tillery v. Candler, 118 N. C. 888, 24 S. E. 709; Worth v. Cox, 89 N. C. 44-48; Oats v. Darden, 5 N. C. 500; Aultman, etc., Machinery Co. v. Arthur, Pish & Co., 120 Ill. App. 314; Tompkins et al. v. Forrestal, 54 Minn. 119, 55 N. W. 813; Black on Interp. Laws, pp. 380, 403, 408, 411; 36 Cyc. p. 1213. In the cases of Mann v. Allen and Elizabeth City v. Commissioners, supra, a construction giving retrospective effect to the statute would have affected the right of the parties growing out of the transaction, and State v. Pridgen, 151 N. C. 657, 65 S. E. 617, State v. Littlefield, 93 N. C. 614, Merwin v. Ballard, 66 N. C. 398, to which we were referred, were cases of indictment found or causes already instituted which usually come within the general rule, and on the principle further recognized:

"That a legislative enactment will not be construed to oust a jurisdiction...