Hodge v. . R. R.

The defendant failed to make the annual report to the Governor required by the statute (The Code, sec. 1959) for the year ending 30 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 (The Code, sec. 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 $500, 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 $500, to be faithfully appropriated for establishing and maintaining free public schools in the proper county or counties of this State, under section 5, Article IX of the Constitution of said State.

"2. That it appears upon the face of said complaint that W. T. (25) Hodge is not the proper relator of the plaintiff, and 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 made a party plaintiff. 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 (The Code, sec. 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, Art. IX, sec. 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 and forfeitures 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 (26) was held in Katzenstein v. R. R., 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 (The Code, sec. 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 The Code, sec. 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 the provisions of The Code, sec. 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), provided the opposite party is put to no disadvantage. Justices of Tyrrell v. Simmons, 48 N.C. 187; Grant v.Rogers, supra. The amendment cannot be allowed, 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 (27) course is to dismiss the action, unless plaintiff asks and is allowed to amend. Netherton v. Candler, 78 N.C. 88. This was not the case here. The judgment dismissing the action is affirmed.