State v. Baker

47 Miss. 88 | Miss. | 1872

SlMRALL, J. :

The question presented by the record is whether the father of a daughter under eighteen years of age can maintain a suit against the probate clerk, and the sureties on his official bond, to recover the statutory penalty of $1,000, for issuing a license to a male to marry the daughter, in the absence of the father’s consent, or the affidavit of a credible person that the daughter is over eighteen years of age.

The subject is regulated by art. 6, Code of 1857, p. 332. The last clause of the article prescribes the penalty, to wit: “If any clerk shall issue a marriage license, without the requisites before prescribed, or in any other manner, such clerk shall, for each offense, forfeit and pay the sum of one thousand dollars, for the use and benefit of the person suing for the same, to be recovered by action of debt before any court having cognizance thereof.” The condition of the bond is that the clerk shall faithfully perform and discharge all the duties of the office, and all the acts and things required by law or incident to the office.”

It could not well be questioned that the issuance of a marriage license not in conformity to the statute, would not be “ a faithful performance of official duty,” but would be a breach of the condition of the bond, for which the aggrieved party might sue. In effect, the stipulation of the sureties is, that for any misfeasance of the clerk, as expressed in the condition, for “ any non-performance, or failure to discharge official duty,” they will indemnify any person injured. The engagement of the surety is “ stricti juris,” not to be increased or extended beyond the fair import of his contract.

Another principle has been long considered by the courts: that penal statutes must be construed strictly; which means that a proceeding founded upon them must be clearly brought within the letter and reason of them. Thus when debt upon the statute, is brought to recover the penalty for cutting trees upon another’s land, if it turns out that the trespass was committed on the lands of another, by mistake as to the boundary, the action will not lie, because the act was not wilfully done, and the purpose of the statute is to punish with punative damages the wilful wrongdoer. Perkins v. Hackleman, 26 Miss. 45. In such, case the damages will be limited to the actual injury done.

Where the statute gives a remedy to recover liquidated damages, by way-of. penalty for the wrong done, the statute must be strictly perused, otherwise the plaintiff will lose its benefit. The choice is often afforded between the action of acts on the statute for the penalty, and the appropriate remedy at common law. In the former the damages are fixed and arbitrary, not measured so much bjr the loss sustained or the injury done, as by motives of policy, to punish for the wrong committed. In the latter the remuneration is ordinarily confined to avsimple precuniary reparation. The plaintiff here had his election either to go upon the bond against the clerk and his sureties, wherein he could recover such damages as his evidence shall show he has suffered, or he might persue the special remedy given by the statute. A close reading of statute, brings out two prominent features; first, the misconduct of the clerk is described as an “offence;” second,the $1,000 is a “forfeiture,” to be recovered by the “ action ” of “ debt.” It has ever been the rule at common law, that if a statute denounces a penalty or forfeiture, for the benefit of a party aggrieved, and prescribes no remedy, the action of debt, grounded on the statute, is the appropriate and only fit action. 1 Chit. Plead., title “ Debt.” Adams v. Wood, 2 Cranch. 336.

We have not been able to find a precedent to sustain this action. Reason and the analogies of principle are against it. In Bates v. Stokes, the suit was directly against the clerk upon the statute; so was Detterly v. Yeamans, there referred to as not reported.

We are of opinion that the plaintiff may sue upon the official bond, for the issuance of a license for the marriage of his daughter under 18 years of age, in the circumstances stated in his declaration; but in such suit he is limited to such damages as he has sustained, as shown by the evidence, which may be more or less than the statutory forfeiture. We are further of opinion that the plaintiff cannot count upon the statutory penalty, in a suit against principal and sureties in the official bond.

There was no error therefore in sustaining the demurrer to the declaration.

Judgment affirmed.