Dyer v. . Ellington

Upon the facts found, the defendants moved for judgment and (943) the motion was disallowed.

The defendants appeal, and make the following assignments of error:

1. The plaintiff had no standing in court upon the facts, his action being against the defendants individually, and if entitled to sue at all, his action should have been against the town of Leaksville or the board of commissioners of the town of Leaksville.

2. The defendants were protected, and the plaintiff deprived of his right of action by reason of the act of the General Assembly, being entitled "An act for the relief of the commissioners of the town of Leaksville, in Rockingham County, North Carolina," Laws 1899, ch. 349. The act referred to in the case on appeal is as follows: "An act for the relief of the commissioners of the town of Leaksville, Rockingham County: Whereas, the commissioners of the town of Leaksville, in Rockingham County, North Carolina, by an oversight, failed to make an exhibit of the taxes collected and expenditures as required by The Code, sec. 3816, and whereas certain parties have sued said commissioners for such failure, therefore the General Assembly of North Carolina do enact: Section 1. That the (944) commissioners of the town of Leaksville, in Rockingham County, N.C. be and the same are hereby released from any and all penalties that may attach to them for failure to make such exhibit. Section 2. That this act shall be in force from and after its ratification."

This act was ratified on 28 February, 1899. It does not repeal section 3816 of The Code, either generally or locally, nor pretend to repeal it even as far as the town of Leaksville is concerned. It is simply what it professes to be upon its face — an act of amnesty or pardon to the commissioners of the town of Leaksville for their failure to make an exhibit of taxes and expenditures for the particular year for which they had been sued. It is true the act is very loosely drawn, specifying neither the names of the persons nor the year of their default, and yet it seems plain to us to whom and to what the act was intended to apply. If there had been pending suits against different boards or for different defaults, the ambiguity might have been fatal; but there is not suggestion of any such ambiguity, whatever difference of opinion there might be as to the application of The Code. Whatever doubts we may have as to the propriety of the act or its probable effect, had it related to a criminal prosecution, we are not called on to express. The Code, sec. 3764, provides that "the repeal of a statute shall not affect any action brought before the repeal, for any forfeitures incurred, or for the recovery of any rights accruing under such statute." This provision has been held good in Epps v. Smith, 121 N.C. 157, but does not apply to the case at bar, as here we have no repeal, but an absolute and express remission of the penalty. An informer has no natural right to the penalty, but only such right as is given to him by the strict letter of the statute. It is not such a right as is intended to be protected by the act, but is one (945) created by the act. He has in a certain sense an inchoate right when he brings his suit, that is, the bringing of the suit designates him as the man thereafter exclusively entitled to sue for that particular penalty; but he has no vested right to the penalty until judgment. Until it becomes vested, we think it can be destroyed by the Legislature. Wilmingtonv. Cronly, 122 N.C. 388. As the laws of one Legislature do not bind another, except in so far as they may be absolute contracts, we must take section 3764 of The Code as merely a rule of construction having no application where the intention of the Legislature clearly and explicitly appears to the contrary. A statute providing a penalty creates no contract between the State and the common informer, even if he acts under the permission given him to sue. It is true he may thus lose the costs and expenses of his action, but if he engages in a speculation from which he expects large profits from a small investment, he can not complain much at the loss of his stake. If the penalty had been reduced to judgment, or had been given to the injured party in the nature of liquidated damages, the case would be essentially different. But we are not now deciding what is not before us. Sufficient unto the day is the evil thereof. As this case comes before us on findings of fact by the judge, and as it appears to us that the cause of action was destroyed by the act of the Legislature before it became vested, the judgment of the court below must be

Reversed.

Cited: Dunham v. Andrews, 128 N.C. 210; Grocery Co. v. R. R.,136 N.C. 400; Turner v. McKee, 137 N.C. 255, 268; Bray v. Williams,ibid., 391; Williams v. R. R., 153 N.C. 364; R. R. v. Oates,164 N.C. 170.

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