45 Neb. 418 | Neb. | 1895
James B. Hale, suing for himself and the state of Nebraska, brought this suit in the district court of Lancaster county against the Omaha & Republican Yalley Railway Company to recover the penalty denounced by section 104,
In United States v. Laescki, 29 Fed. Rep., 699, it was held that such an action must be brought 'in the name of the informer, and that the penalty could not be recovered by indictment at the instance of the government. But the statute on which that action was predicated provided: “Every person who violates this section shall be liable to a penalty of one hundred dollars, recoverable, one-half to the use of the informer.” The word “recoverable” in this statute would seem to authorize a suit for the penalty by the informer.
The Chicago & A. R. Co. v. Howard, 38 Ill., 415, was ,án action brought by Howard, suing for himself and the
In Lynch v. Steamer “Economy,” 27 Wis., 69, it was held that the informer might maintain an action in his own name for the penalty. The court said: “The action is evidently a qui tarn action, and, we are inclined to hold, may be brought in the name of the complainant (informer) alone. It is a general rule that a common informer cannot sue for a penalty unless authorized so to do by statute; but many cases hold, where the statute gives the forfeiture, or a part of it, ‘to any person who shall prosecute therefor,' that this, or equivalent language, confers express authority upon him to sue in his own name. * * * But if there were any doubt upon this point, it is removed by the language making the penalty a demand or lien against the boat, ‘to be sued for and collected in the manner provided’ for the collection of demands against boats and vessels. This language, we think, shows that the statute contemplated that the complainant (informer) should be the plaintiff in the action, and that the proceeding should be analogous to an ordinary suit for the collection of a demand against a vessel.”
The statute of Arkansas provided that railroad companies should cause a whistle to be sounded or bell rung, etc., “under a penalty of two hundred dollars for every neglect, to be paid by the corporation owning the railroad, one-half thereof to go to the informer and the other half to the county,” etc. One Bell sued in his name, for the use of the state of Arkansas and Miller county, a railroad company to recover the penalty provided for by said statute.
In Nye v. Lamphere, 2 Gray [Mass.], 295, the court sustained a suit brought by an informer in his own name to recover a statutory penalty, but the statute on which the action was based provided that the penalty was “ ‘ to be recovered in any court proper to try the same, one-half to the use of the said town and the other half to any person who shall prosecute therefor.’ ” This statute expressly conferred authority on the informer to prosecute the action. The court said: “The defendant’s objection to the maintenance of this action is that the plaintiff is an informer, and therefore cannot sue in his own name, because authority so to sue is not given him by statute. And undoubtedly it is & general rule that a common informer cannot sue for a penalty, without express statute authority. * * * But by what terms in a statute is such authority conferred? Certainly by terms like those used in the statute on which this action is brought; namely, by giving the forfeiture, or .a part of it, ‘ to any person who shall prosecute therefor.’”
In Higby v. People, 4 Scam. [Ill.], 166, a suit was brought to recover a penalty in the name of the people. The statute provided that the penalty sued for should go to the informer and the county; and the court held that the •state had no interest in the recovery; that “the statute not authorizing the suit to be instituted in the name of the people, it was improperly brought, and the court erred in not dismissing it.”
In Colburn v. Swett, 42 Mass., 232, it was held: “As a general rule, a common informer cannot maintain an action for a penalty, unless power is given to him for that purpose by statute.”
In Fleming v. Bailey, 5 East [Eng.], 313, it was held
These authorities, we think, without serious conflict, recognize this rule, an informer cannot maintain an action in his own name to recover a penalty unless authorized so to do by statute. The statute on which this action is based -does not expressly authorize the penalty denounced by said statute to be sued for and recovered by an informer, nor •does the statute contain any language from which such an authority may be inferred. The act provides that the penalty shall be paid by the corporation owning the railroad. Paid to whom? We think, paid to the state. The corporation, by violating the law, forfeited to its sovereign, the state, not to the informer, the penalty denounced by the act. It is true that the law holds out an inducement to the ■citizen to inform the officers charged with the execution of the law of its violation and in effect offers the informer a reward for his information; but it does not authorize the informer to bring the action, nor, when brought, to control it.
Counsel for the defendant in error insist that section 617 of the Code of Civil Procedure authorizes an informer to maintain an action for the penalty in his own name, or at least that said section is a legislative recognition of the ¡right of an informer to maintain a suit. The section is as follows: “ If any informer, under a penal statute, to whom the penalty, or any part thereof, if recovered, is given, shall dismiss his suit or prosecution, or fail in the same, he shall pay all costs accruing on such suit or prosecution, unless he be an officer whose duty it is to commence the same.” We think this argument is untenable. If a statute fixes a pecuniary penalty for its violation and gives a part of such penalty to an informer, and if the statute, or some other,
Reversed and dismissed.