137 N.C. 251 | N.C. | 1904
Lead Opinion
The Code, sec. 754, provides that “no account shall be audited by the board (of county commissioners) for any services or disbursements, unless it is first made out in items and has attached to and filed with it the affidavit of the claimant that the services therein charged have been in fact made and rendered and that no part thereof has been paid or satisfied.”
This is a very explicit and very wise provision of the lawmaking power. It is of the highest importance to the public'
Not satisfied with placing the county commissioners under the supervision of the grand jury and solicitor, the Legislature added a qui iam action, thus making it to the special as well hs genera] interest of any citizen to see that the dirties imposed upon the commissioners are faithfully executed. The plaintiff accordingly brought this action against one of the county commissioners before a justice of the peace “for the penalty of $200 accrued under section 711 of The Code of North Carolina for neglect of duty required of him as a member of the board of commissioners, for failing to require an itemized and verified account to be filed by Jóhn Laws before auditing the said account, as required by section 754 of The Code.” This was stated in the summons. In his return to the appeal the justice stated: “The plaintiff complained of non-payment of $200 due by reason of the penalty accrued under section 711 of The Code for his neglect of duty as a member of the Board of Commissioners of Orange County, for his failure to require an itemized account, fully verified by the oath of John Laws, before he audited and approved said account, as required by section 754 of The Code. The defendant demurs to the complaint in this action for that the plaintiff in said complaint does not state facts sufficient to constitute a cause of action, in that it fails to show what accounts, if any, the defendant is liable to the plaintiff for the
On appeal the 'Judge “sustained the demurrer and (there being no amendment asked) affirmed the judgment of the justice of the peace dismissing the action.” This was error. The Code, sec. 840, Rule 5, provides, as to proceedings in- the Justice’s Court: “Pleadings are not required to be in any particular form but must be such as to enable a person of common understanding to know what is meant.” The allegation of “neglect of duty in failing to require” an itemized and verified account is a charge of negligently failing to do so. The statutes (sections 754 and 711) are also referred to in stating the cause of action.
The defendant certainly must have known what was meant here, and that he was sued for “a penalty of $200 under section 711 of The Code for neglect of duty as a member of the "Board of Commissioners of Orange County, for his failure to require an itemized account, fully verified by 'the oath of John Laws, before he audited and approved said account, as required by section 754 of The Code.” The magistrate understood exactly what the action was for and thus clearly states it in his return. It is impossible that the defendant and his counsel did not understand it. The defendant, a pxrb-lic officer, thus clearly charged with a failure to discharge a public duty, should have answered, either admitting or denying the charge, or setting up his defense. In Staton v. Wim-berly, 122 N. C., 107, the Court said that the statute imposing the duty, whose violation was there alleged, “allows some discretion in the board of commissioners by the express terms of the statute,” and that the evidence failed to show any abuse of that discretion. The Code, section 754, does not confer any discretion, but is mandatory in requiring the account to be itemized and sworn. Whatever defense the defendant has must appear by the answer and on the trial. There has been
It does not appear that there was more than one account audited in favor of John Laws, and, if there had been, the plaintiff could have made out his allegation upon the trial by showing any one account or all of the accounts of John Laws, which had been audited without being itemized and verified as required by the statute — other than those whose illegal auditing was protected by the statute of limitation, if pleaded. If the defendant desired fuller information before pleading he should not have demurred but have asked for a bill of particulars. “The Court may in all cases order a bill of particulars” (The Code, sec. 259), and even in criminal cases, State v. Brady, 107 N. C., 882. See cases cited in Clark’s Code (3 Ed.), p. 274. But here the defendant was even better informed than the plaintiff. It was plain to the defendant “what was meant” by the proceeding and he needed no further information to set up his defense.
An indictment of a public officer for neglect of duty, not more explicit than here, was sustained in State v. Dickson, 124 N. C., 871. In State v. IIatch, 116 N. C., 1003, it was held that “Carelessness amounting to a willful want of care in the discharge of official duties” justified a verdict of guilty even under section 1090 of The Code, and that honesty and good intent are not a full defense, because there may be neglect of duty without any corruption in office. This has been cited with approval in Stanly v. Baird, 118 N. C., 83; Sanders v. Earp, 118 N. C., 279; State v. Oswalt, 118 N. C., 1213, 32 L. R. A., 396; State v. Deyton, 119 N. C., 882; Staton v. Wimberly, 122 N. C., 110; Slate v. Dickson, 124 N. C., 874. We are not anticipating any defense the defendant may set up, but merely hold that a sufficient cause of action has been stated under The Code, sections 754 and 711, when the facts herein alleged are admitted by a demurrer, especially
The judgment dismissing tbe action must be reversed. Tbe demurrer should be overruled, with leave to tbe defendant to answer over. The Code, sec. 272.
Reversed.
Concurrence Opinion
concurring. I am much impressed with tbe able and elaborate dissenting opinion of Justice Connor and. heartily agree to nearly all be says, and yet I cannot come to bis conclusion. It may be that I am unduly influenced by my disinclination to permit a public officer to meet a charge of official misconduct with a mere demurrer. I think be should answer, and if be needs any further information for bis defense, let him ask for a bill of particulars or move tbe Court to “require tbe pleading to be made definite and certain by amendment,” as provided in section 261 of Tbe Code.- I cannot think that tbe defendant is so entirely ignorant in fact as be may be in contemplation of law. I am still of tbe opinion tbat “an informer' has no natural right to tbe penalty, but only such right- as is given by tbe strict letter of tbe law,” as was said in Dyer v. Ellington, 126 N. C., 941. I also think tbat tbe statute being penal in its nature, although tbe action thereon is said to be civil, should be strictly construed in furtherance of substantial right, and that faithful public officers, honestly striving to do their duty within tbe letter and spirit of tbe law, should not be held liable for omissions purely technical in their nature and immaterial in their results. On tbe other band, no matter bow high their character or bow honest their general intentions, they cannot be permitted to treat with indifference laws passed for tbe protection of tbe public whose servants they are. Let them render an account when called on, and if they are faithful they will receive the
Dissenting Opinion
dissenting. My first impression of this case was that the plaintiff had alleged facts sufficient to constitute a cause of action, and while he had not pleaded with technical accuracy and perhaps had stated his grievance somewhat in-artificially, yet there was just enough said to require an answer from the defendant. A more careful and critical examination of the case and a better understanding of the facts convince me that my first impression was not correct, and that there are defects in the complaint which, in the present state of the case, namely, a defective complaint and a demurrer thereto sustained, must be fatal to the plaintiff’s recovery, at least in this action. The pleadings in the justice’s court were oral, but the cause of action is set out in the summons, and the substance of it, which is stated in the return of the justice as required by The Code, section 840, Rule 2, is as follows: “The plaintiff complained of the defendant for the non-payment of the sum of $200 due by reason of penalty accrued under section 711 of The Code of North Carolina, for his neglect of duty as a member of the Board of Commissioners of Orange County; for his failure to require an itemized account, fully verified by the oath of John Laws, before he audited and approved said account, as required by section 754 of The Code.” The duty, for a breach of which the plaintiff claims a penalty, is thus prescribed by law: “No account shall be audited by the board for any services or dis
It is perfectly familiar learning, being one of the first principles of statutory interpretation, that penal laws must be construed strictly and it is not permissible to enlarge their operation by implication nor by any equitable construction, but we must ascertain their meaning only by the express letter. They must be restricted to the plain import of the language used to convey the intent of the Legislature. Smithwick v. Williams, 30 N. C., 268; Coble v. Shoffner, 75 N. C., 42; State v. Midgett, 85 N. C., 42. In declaring upon a penal statute certain rules of pleading', besides the general rules, are specially applicable to such cases. The plaintiff in his complaint under the general rule must show a good title to that which he seeks to recover, and if he fails in this respect the defendant may demur, move in arrest of judgment, or bring a writ of error. But the special rules require him, in an action for a penalty, to set forth every fact essential to show that his case is within the letter and spirit of the law by which it is given. He must plead with particularity so that the Court may clearly see, without the necessity of making any inference, implication or conjecture, that the unlawful act has been done or that the duty enjoined has been omitted by the defendant. No intendment will be made in his favor. He must succeed, if at all, upon the facts as he states them, and
The plaintiff sues in what is termed a “popular action,” not so called because such actions meet with popular favor or approval, but deriving its name solely from the peculiar fact
Having acquainted ourselves with the nature of the action and applying the foregoing principles to this case, let us see if the plaintiff has brought it within, the statute so as to become entitled, as a common informer, to the penalty he seeks to recover. I think he has not. Section Y54 applies only to cases where the account is for services rendered, and, even if a verified statement is required as to disbursements, it refers to such as have been made by the claimant. There are many kinds of accounts filed with the commissioners upon which claims for payment are based, and the glaring defect in the complaint is that it is not stated therein that the account alleged to have been audited without being itemized or verified was either for services or for disbursements. Mr. Laws may have had some other kind of claim against the-county, which is not included in the terms of the statute, but whether he had or not the law will not require the penalty of the defendant unless we can see clearly that he has violated its mandate. There is not even room enough in this complaint for a reasonable conjecture as to the truth of the matter. The defendant is not liable to the plaintiff, unless the board has failed to require an account for services to be itemized and verified or an account for disbursements to be itemized. This is according to the letter, and, as far as we can see, also according to the spirit and intent of the statute. The plaintiff has failed to
It has been said in a case where a statute similar to ours was construed, and in which the plaintiff sought to recover a penalty, that “the main office of a complaint being to apprise the defendant of the facts upon which the plaintiff relies to establish a cause of action, The Code (of New York) requires that such facts shall he stated plainly and precisely; and inasmuch as this action is highly penal in its nature, there was special reason why in this particular instance the rules of pleading should not have been relaxed.” Steuben v. Wood, 24 App. Div. (N. Y.), 442. This language fits our case, even applying the liberal rules of pleading under The Code.
I have not adverted to the fact that the complaint charges that the defendant McKee individually failed to require an itemized and verified account, whereas the statute requires that duty of the hoard as a corporate body or distinct entity, and not of the individual members. The latter must act together as a unit. This is certainly not good pleading. Whether, the duty being single, its omission is therefore a single offense, for which only a single penalty can he exacted, is a question I need not consider at present, though it will be one well worthy of serious consideration when we are required
The plaintiff was given an opportunity to amend his complaint, but preferred to stand upon his rights as fixed by the present state of the pleadings. The complaint being defective, I can see no error in the ruling of the Court by which the demurrer was sustained.
Dissenting Opinion
dissenting. Recognizing fully the liberality with which under our Code system pleadings are construed “in furtherance of justice” and advancement of the remedy, I cannot concur in the conclusion reached by the Court in this case. I cannot think that it was ever contemplated by the authors of The Code system that a party may maintain an action, not knowing or, if knowing, refusing to inform the Court of the facts upon which his alleged grievance is based. Either the plaintiff is “fishing” for a cause of action, or he is trifling with the Court in bringing the action as he does and refusing to comply with the most reasonable, and, I think, strictly legal, demand that he state “in a plain and direct manner the facts constituting the cause of action.” Rule 3, Justices’ Courts, The Code, sec. 840. The records of the commissioners, including “the books and papers of the board,” are “free to the examination of all persons.” The Code, sec. 712. The plaintiff before beginning his action could have found, by a few moments examination, “filed in alphabetical, or other due order, all accounts presented or acted on by the 'board, * * * the amount allowed and the charges for which it was allowed.” Ibid. In the light of these plain provisions of the law certainly there can be no good reason for further relaxing the rules and elementary principles of pleading, requiring the plaintiff to state “in a plain and direct mannei the facts constituting his cause of action.” This Court has repeatedly held that it was necessary to do so, and has ex mero
In Drake v. McMinn, 27 N. C., 639, Nash J.,concluding the opinion, says: “We have nothing to do with the motives of the plaintiff in instituting these proceedings. He appears before us as a public informer, seeking to enforce against the
Applying these well-established rules, so essential both to orderly procedure and to the protection of the citizen against harassing and expensive litigation, I think the complaint fatally defective. No account, either by number, date, or amount is named. The complaint is: “For his failure to require an itemized account, fully verified by the oath of Mr. John Laws, before he audited and approved said account.” The words “said account” must refer to some account theretofore named or in some manner designated, but none is named or designated. It is said, “the defendant must have known what was meant here and that he was sued for a penalty,” etc. It is further said that “the magistrate understood exactly what the action was for and thus clearly states it in his return.” As the learned Chief Justice, writing for the Court, makes this statement of fact, I must assume that it is correct, but I must, with all possible deference, say that I can account for it only upon the theory that their mental vision measures up to the standard fixed by Samuel Weller respecting the kind of eyes by which he was expected to see “thro’ a flight o’ stairs and a deal door.” I must confess that I am unable to exactly understand what the plaintiff means. Without call ing “in aid” the power to read the mind of the plaintiff, I am unable to see what his grievance is. Whether it- was that the defendant audited an account presented by some one else not fully verified by Mr. John Laws, or whether Mr. Laws had presented an account not itemized and fully verified does not very clearly appear to my mind, and I am not surprised that a layman should have respectfully asked that the plaintiff
The suggestion that the defendant should have answered, either admitting or denying the charge, assumes the very question in controversy that there is no charge he was called upon to answer. He has a right to demand, before he is required to “admit or deny” anything, that the complaint contain, not formal or technical language, but a “plain and direct statement of the'facts.” Our laws, both substantive and remedial, are the expressions of the minds and experience of a plain people, using plain and direct language to express plain thoughts. They are not intended to encourage a game of hide-and-seek in the courts. If one will call his neighbor into the courts, let him do so in a manner and with speech that may be understood by plain men. It is suggested that the defendants should not have demurred, but joined issue and “gone to the country.” This again assumes the very question in issue. The issues arise upon the pleadings, and if these raise no issue the finding of which will enable the Court to proceed to judgment, the parties and the Court will at the end of the trial have performed the proverbially useless feat of coming out where they went in, or of moving around