*1 633 TERM, 1870. Bunting op op ake Co. The Boakd Comm’rs v. an ascertained be would be, would only

residue to such tlie of executor to be taken. No assent account its of Probate of this, Court will appro- .legacy jurisdiction. priate

There is error. affirmed. Cukiam. Per Judgment OF OF THE BOARD COMMISSIONERS BUNTING v. N. JOHN WAKE COUNTY. 1874-’7i>, which ofAct

The consideration,” (fail- any of th indictments under of the' county,” repeals be against.the to list “shall taxed ing poll,) a nol. law,, pros, making county liable cases general entered. Romedissenting.

Justice .. action, was submitted without heard This Controversy a. at June Court J, Superior Watts, following Wake counly, upon of

CASE AGREED: (cid:127) claims N. to recover the Board Com- John Bunting dollars, of Wake three and the missioners hundred of Wake the claim. county-resists Board Commissioners are the facts The following controversy : depends

1. The nowand has been, since the first Monday A. .D. 1874, clerk of the Court of September, Superior said county. Term,

2. At Court January found and returned into court grand jury certain 684 IN THE SUENEME COUNT. ' omm’jjs Board of of wake

Boutins o. *2 indictments citizens of said for their certain several failures to list their for taxation for the year polls 1873, 115, of the Act of 1872-’73, under provisions chap. 19, sec. Bat. Nev. sec. 162, 19. chap.

3. said clerk of the Court under the direction Superior .District, the court and Solicitor for the 6th Judicial entered ; said indictments then and there on the records of the term and under like the months of directions, afterwards during and and 18th 1875, before the January February, day in issued for the defendants named said March, 1875, capias endorsed indictments, and for the witnesses thereon. subpoenas the Solicitor court, 4. At of said Spring control and direction of District, the 6th Judicial under the court entered nolle as to the defendants in prosequi many and that indictments; of said the three hundred dollars claimed aforesaid, as amount of the by aggregate half fees claimed the clerk for by indictments, entering criminal in of said nolle &c., actions, prosequi were entered.

5. In none of said criminal actions wherein are charges made clerk for did the defenfiants exhibit services, by their tax and the one dollar and cents of pay fifty receipts and move to dismiss the indictments them respec- allowed 1874-’75, as to do Act of tively, they by chap. sec. 3. 200, nolle, said and before

6. After the were entered prosequi 15th June, 1875, .of clerk of the day plaintiff, Court of Wake made his account county, up law, the defendants as therein the vari- required by including constitute the sum of aforesaid, ous items which three hundred thereof on demanded dollars, day regularly payment at and date aforesaid the office of the defendants Wake the defendant then and there refused payment to make. tax in one and two 1873, was between dollars.

County poll 635-' TERM, 1876. Bunting- ks of Wake o. The Boakd of Comm at the time- On this state of facts the defendant claimed 7. that it and claims was and is under no- now, said demand, was and is claim, aforesaid liability such free, released and liability,, entirely discharged 1874-’75, of the act of sec. 2. chap. by operation and now act' claimed, then claims, The plaintiff not within 1874-’75, embrace its.. like wherein the had been his, a case indictments operations before-, the official services rendered the clerk found, of said the ratification act. this-, a case of if section embrace

That purports *3 of the Constitu- the both it nature, repugnant provisions therefore,* of this State, and, tion United States and of the void. 4 of in all act, terms,

That section express parties- by of the act, with the as contained who fail provisions comply are as if the act thereof, to be in section preceeded against not been had passed. the facts, state of of the-

If the foregoing opinion the is to be entered" shall be with court plaintiff, judgment favor of and in the for the defendant herein against But &c. if the fore costs, dollars and hundred three court of the be with the facts, shall state opinion going herein to be entered defendant-, against plain- judgment costs, for of- the &c. tiff, in favor defendant and liis at Fall Honor rendered' the hearing, Upon from, to the case for according plaintiff, agreed, judgment the defendant appealed. which judgment know, Bnsbee Bunbee c6 appellant. contra.

Haywood, in made the failure* J. The Legislature Reads, 1872— and intended to make- misdemeanor, for taxation a to list polls but Peace; Justice file offence by- cognizable (cid:127)'636 IN THE SUPREME COURT.

Bunting- op op The B 'Ard Wake Comm’bs limiting punishment instead of one thirty month, days it was before the cognizable Court, and a great many were indicted. In 1874-76, the Su- Legislature deprived Court of in perior and, order to relieve those jurisdiction, who had been indicted from the hardships ordinary bills of that the Solicitors should dismiss all provided the indictments the defendants their pending, upon showing tax cents each to receipts, Solicitor, Clerk paying fifty and Sheriff. And further, that no provided costs part n cases should be taxed Acts 1874-75,

And now the who is the Clerk of the plaintiff, Court, brings ¿this action for his fees, notwithstanding Act the cost shall be taxed because, he county,- says,

I. That the Act is prospective only.

It is true, statutes are to be construed as prospective unless the (cid:127)only, Here contrary clearly appears. contrary n The Act clearly appear. terms refers to express indictments.” pending II. That he had the services performed before the Act was therefore his ves-ed, to his fees was passed, and the Leg- islature could not him of it.

It is true fees fixed law, *4 when he rendered the services he liad the to expect pay. But from whom? If for then from that prrxon, any person. /State, If for the then from the State. If for a then covvty, the from C. C. P., sec..555. Here the services “ ¡State. rendered for the and are to be the State, paid claims as other it C. are.” C.. sec. 555. I P., leave (cid:127)out of view the question State to power change abolish or the fees of the officers. It is also that true, the- has the- to legislature power pre-

,scribe that the counties shall the costs of State criminal pay And the prosecutions. plaintiff says: TERM, 1876. Bunting The oí? oe Wake v. Board CommTís costs- III. That tlie State bad the liable for the made county the in the cases which claims his fees. plaintiff It is that before time the rendered true, and at the “ eases, the our statute that in all State services, did provide entered, &c., shall be voile the there p--os county qu> Clerks, &e., fees.” Bat. Rev., shall the half their chap.’ pay “ “ nolle 32. And here were State cases” and 105, sec. there But then the act of clap prosequi,^ 1874— the costs any upon the under shall be taxed indictments, consideration, law indictments, does, as to these county,” repeal general as if there the counties liable. And so the ease stands making never law the counties liable. So liad been that any making there to but vras not county rompulsion. upon pay, only an prohibition. express view, this

The can be only thing urged rendered, that at the services were time the argument, under law. was bound No. county county general noli*, until a should And was be entered. not bound pru.sequi done, the act of before that was gen repealed 1874— eases. thus : The that, eral as to these So the case stands law its wdll is like other liable for State, as wre suppose, party, itself in certain cases, costs. It relieves from liability which are counties, parts parcels puts upon of certain State, contingen pay, happening State relieves cies. Before contingencies happens, to that. can be no there liability, counties objection A owes of the cow-ties is B, contract thereby impaired. No it, or as before C it; his and directs pay agent pay A withdraws-his authority, responsibility, sumes any personal bound this, not to it. After C is neither C directs pay Pace, 73 it. Dixon Davidson v. & nor authorized pay C. N. Rep. of the State to mean to

We not pass liability do not is, All that vTedecide this claim. bound.. *5 «38 IN THE SUPREME COURT

Buntins Tii« Boaud Comm’bs of Wake Co. There is error. reversed, here for Judgment judgment defendant.

RodmaN, J. Dissenting.

I dissent from the court this opinion reason. When the services Clerk in plaintiff performed respect he as the sues, law then stood he was entitled to re- ceive fees the event nolle prosequi should be entered on the indictments. It was a vested right on to of a which-the payment happening contingency could not him of. an Accident If Insur- Legislature ance to a certain sum in B case he shall Company agrees or a be disabled killed on certain his to receive journey, right on the a vested money happening contingency is not until the right, although right complete contingency When it relation happens. happens becomes right ah init'-n. It absolute cannot be supposed Legislature could from its contract at discharge time Company contingency happened. for the defendant is that the had argument Legislature to substitute the State as a a debtor right place IBut conceive the has no com- Legislature a creditor his claims a solvent up debtor pel give he whom has and to substitute in practical remedy, State his whom he has place Besides remedy. it seems me never intended to plain Legislature liable for .make the State claim. I think the violated a contract, Act 1874-75 and was void as in con- flict with the Constitution of the United States. reversed. Judgment

Pkb CukiAM.