Waddle v. Duncan
| Decision Date | 31 January 1872 |
| Citation | 1872 WL 8158,63 Ill. 223 |
| Parties | JOHN WADDLE et al.v.DAVID DUNCAN, use of, etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Christian county; the Hon. H. M. VANDEVEER, Judge, presiding.
This was an action of debt, brought before a justice of the peace by David Duncan, who sued as well for himself as for the town of May, against John Waddle and Josiah Waddle, to recover the penalty provided by statute for obstructing a public highway. See Laws of 1861, page 264, section 97, which provides that “the same may be sued for by any elector of the town, in an action qui tam, one half of the amount to be paid to the person who shall sue therefor, and the other half to the town.”
The verdict was for the defendants, and the prosecutor appealed to the circuit court. Evidence was offered to show the establishment of the road in question, which was met by evidence tending to show that the proceedings were irregular, and that the road had been abandoned prior to the alleged obstruction. Objections to testimony were made on both sides and exceptions taken to the rulings of the court. It does not appear that any reference was made, or proof offered, either before the magistrate or in the circuit court, in support of the statutory requirement that the suit should be brought by an elector of the town. Upon trial before a jury in the circuit court, the defendants were found guilty, and a fine assessed. The defendants moved for a new trial, which motion was overruled and judgment entered on the verdict, and the case comes to this court on bill of exceptions. The points involved in the case are stated in the opinion.
Messrs. STUART, EDWARDS & BROWN, and Messrs. SIMPSON & PEASE, for the appellants.
Messrs. MOULTON & CHAFFEE, for the appellee.
This was a qui tam action, brought to recover a penalty for obstructing a public highway. The section of the statute giving this suit, provides, that in case of failure of the town, or of the officer or agent whose duty it is to prosecute, to commence a prosecution for the penalty within 60 days from the time it shall have been incurred, “the same may be sued for by any elector of the town, in an action qui tam, one half of the amount received to be paid to the person who shall sue therefor, and the other half to the town.” Laws 1861, p. 264, section 97.
This is a penal statute, to be strictly construed. The right to sue depends only on the statute, and the person who alone can bring the suit is designated as an elector of the town. The bill of exceptions states that all the evidence is set out, and there is none whatever on this point.
The plaintiff, having failed to show that he filled the character of an elector of the town, made no title to the penalty, nor showed any right to sue for it. In an action directly upon a statute, or on rights derived from a statute, the party prosecuting must prove every fact necessary to make out his title to the thing demanded, and his competency to sue for it. 1 Blatch. 155; Com. Digest Pleader, C. (76).
The objection is not sufficiently met by the answer, that the question should have been raised in the court below...
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