56 Ark. 166 | Ark. | 1892
This court decided, in the case of Railway Company v. State, 55 Ark. 200, that if section 5478, Mansf. Dig., was unconstitutional in so far as it awards a part of the penalty to an informer, the remaining provisions were legally separable and would stand. We are now asked to review the decision, but nothing is suggested that was not considered upon the hearing of that cause, and we abide in the conviction that our conclusion was correct.
It is next insisted that the act creates and defines a crime, for which the punishment is a fixed penalty ; and that a proceeding for its recovery can only be instituted by indictment.
The provision that no man shall be put to answer any criminal charge but by presentment, indictment or impeachment is found in the Constitution of 1836, and, in so far as it is material in this case, it was re-enacted in the Constitution of 1868.
The demurrer to the complaint was properly sustained, as it showed that the plaintiff was not, and'that the State was, the party entitled to prosecute the action, Leave to amend by striking out the sole plaintiff and substituting another should not have been granted. The right of amendment is broad, but does not warrant the substitution of a stranger for the sole plaintiff in the cause. Otis v. Thorn, 18 Ala. 395; Davis Avenue R. Co. v. Mallon, 57 Ala. 168; Milliken v. Whitehouse, 49 Me. 536; Dubbers v. Goux, 51 Cal. 154.
If the plaintiff, when the demurrer was sustained, could not amend his complaint so as to state a cause of action in himself, the cause should have been dismissed at his cost. If the State so desired, it might institute an action for the same matters, but it could not cure the defects in plaintiff’s action by stepping into his place. This it attempted, and the court improperly permitted it, to do, against defendant’s objection. If it were treated as the institution of a new suit, and the name of the State written in place of the original plaintiff’s, the complaint would disclose a cause of action; but neither the court below nor the parties so treated it. They treated it as an amendment, and the question presented by the demurrer was, whether it showed a right in the State to prosecute and recover in the action of the original plaintiff. That was the issue tendered by the parties and decided by the court, and it is but just and right that we take it as the question for our decision.
Our answer is in the negative. The State could not thrust itself into Bell’s action and recover for a wrong of which he complained; and as the complaint disclosed such a case, the demurrer to it should have been sustained.
Reversed and remanded.
Const. 1868, art. 1, sec. 9.