FAIRCLOTH, C. J., AND AVERY J., dissent.
While the courts have the power, and it is their duty in proper cases to declare an act of the legislature unconstitutional it is a well recognized principle that the courts will not declare that this coordinate branch of the government has exceeded the powers vested in it unless it is plainly and clearly the case. If there is any reasonable doubt it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.
For several reasons it is not clear that the act in question, which was not only reenacted since the Constitution of 1875 by The Code of 1883 (sec. 3841, 3842), but which has been recognized as valid and amended three times by the General Assembly, first in 1889 (ch. 404) and again by the General Assembly of 1893 (ch. 100 and 207), is unconstitutional and invalid. Among these reasons are:
1. This Court has heretofore recognized that acts like this, giving the penalty prescribed for a violation of the statute, to any one (as to some designated person) who shall sue for the same, (505) are constitutional. Ashe, J., for the Court, in Katzenstein v.R. R., 84 N.C. 688, expressly passes upon the point and holds that such acts are not in contravention of Art. IX, sec. 5, of the Constitution. In Hodge v. R. R., 108 N.C. Merrimon, C. J., elucidates the point and in his concurring opinion on pp. 30, 31, 32 gives strong reasons for adhering to the former opinion of the Court as rendered by Ashe, J. The Constitution of Missouri (Art. XI, sec. 8) contains a clause almost identical with that of this State and the Supreme Court of that state has uniformly held that it was not an inhibition upon the Legislature to give the penalties to any person whom the act imposing the penalties might provide and that the object of the Constitutional provision was not to prohibit qui tam actions in future, but simply to provide that all penalties inuring to the state should go to the school fund. In view of these authorities in our State and elsewhere upholding the constitutionality of such acts which had been customarily passed, time out of mind, it can not be said that this act is plainly and clearly unconstitutional. The doubt, if any, must be resolved in favor of the General Assembly. In addition to these cases directly in point, acts of the Legislature giving the penalty in whole or in part to the person suing for the same, have been recognized as valid in numerous cases since the amended Constitution of 1875, thus in effect approving the direct decisions. Branch v. R. R., 77 N.C. 347; Keeter v. R. R.,86 N.C. 346; Whitehead v. R. R., 87 N.C. 255; Branch v. R. R.,88 N.C. 570; Middleton v. R. R., 95 N.C. 167; McGowan v. R. R., ib., 417; McGwigan v. R. R., ib., 428; Hines v. R. R., ib., 434; Williams v.Hodges, 101 N.C. 300; Cole v. Laws, 104 N.C. 651; and there are more than twice as many more All of these
(506) were erroneously decided and must be overruled if the plaintiffs in them were now, by a new construction of the Constitution, held not to have had a cause of action, a defect which must have been noticed, in this Court, without exception below, if such defect had existed. IndeedKatzenstein v. R. R., in which this Court expressly held that the amendment to the Constitution was not a restriction upon the Legislature prohibiting qui tam, or popular actions as they are sometimes termed, has been cited as authority in no less than twelve cases.Middleton v. R. R., 95 N.C. 167, citing numerous precedents, not only recognizes the power of the Legislature to authorize the penalty to be given to "any one who shall sue for the same" but that the action can be brought in the name of such party alone without joining the State as relator. This is cited and approved in Maggett v. Roberts,108 N.C. 174. The judicial construction of this provision has been uniform and frequently repeated. The legislative construction has been no less so. In the reply of the Court to the Governor as to the "judicial term of office, 114 N.C. 922, on page 927, the Court says, "We rest our opinion of the construction of the Constitutional provision upon the duty and propriety of adhering to the settled legislative construction, acquiesced in until a very recent period by the people acting in public and private capacities." By the same reasoning, the construction of this constitutional provision has had ten times over "a settled legislative construction" which should be adhered to. Scarcely a single Legislature since the Convention of 1875, has passed which did not recognize the power and duty of the Legislature in this particular by enacting or amending statutes conferring the whole or a part of penalties upon persons suing for the same. This has (507) been acted on without question in that department of the government. So universally has it been "acquiesced in by the people in public and private capacities" that only once is it known to have been questioned by the pleadings in all the actions brought to collect penalties, Katzenstein v. R. R., supra, and then by an exceptionally able Court — Smith, Ashe and Ruffin — the legislative construction was unanimously sustained, and has been repeatedly and uniformly recognized since as the law in numerous cases, many of them above cited. It has thus twenty years' uniform construction by both the legislative and judicial departments, and should be deemed settled, if anything can be. The Act of 1889 (ch. 199, sec. 36), requiring solicitors to prosecute and collect penalties and forfeitures, applies only to judgments entered incidentally in due course of procedure. It does not extend to those cases where no judgment has been rendered but an action is simply authorized to be brought for a penalty. The words "penalties, forfeitures and fines" in Art. IX, sec. 5, contemplate
primarily only those imposed incidentally in the course of legal procedure but are broad enough to embrace those for which due action must be brought provided the State is empowered to sue for them.
2. From time immemorial in the English law, it has been found that qui tam actions, actions in which the penalty goes in whole or in part to the person suing for the same, were an efficient, and indeed sometimes an indispensable means of enforcing the law in many cases, as for the breach or neglect of duty by officers and corporations, and Parliament in England and legislative bodies in this country have freely enacted statutes for the enforcement of laws by such actions. There has been no agitation for the repeal of such statutes, and if there had been a radical departure intended by the amendment of 1875 by which the General Assembly would have been deprived of its power to authorize qui tam actions, such inhibition would have been clear and unmistakable and would have been placed in the chapter relating (508) to the legislative department, among the restrictions upon the exercise of legislative power. Art. 2, secs. 10, 11, 12, and 14.
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FAIRCLOTH, C. J., AND AVERY J., dissent.
While the courts have the power, and it is their duty in proper cases to declare an act of the legislature unconstitutional it is a well recognized principle that the courts will not declare that this coordinate branch of the government has exceeded the powers vested in it unless it is plainly and clearly the case. If there is any reasonable doubt it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.
For several reasons it is not clear that the act in question, which was not only reenacted since the Constitution of 1875 by The Code of 1883 (sec. 3841, 3842), but which has been recognized as valid and amended three times by the General Assembly, first in 1889 (ch. 404) and again by the General Assembly of 1893 (ch. 100 and 207), is unconstitutional and invalid. Among these reasons are:
1. This Court has heretofore recognized that acts like this, giving the penalty prescribed for a violation of the statute, to any one (as to some designated person) who shall sue for the same, (505) are constitutional. Ashe, J., for the Court, in Katzenstein v.R. R., 84 N.C. 688, expressly passes upon the point and holds that such acts are not in contravention of Art. IX, sec. 5, of the Constitution. In Hodge v. R. R., 108 N.C. Merrimon, C. J., elucidates the point and in his concurring opinion on pp. 30, 31, 32 gives strong reasons for adhering to the former opinion of the Court as rendered by Ashe, J. The Constitution of Missouri (Art. XI, sec. 8) contains a clause almost identical with that of this State and the Supreme Court of that state has uniformly held that it was not an inhibition upon the Legislature to give the penalties to any person whom the act imposing the penalties might provide and that the object of the Constitutional provision was not to prohibit qui tam actions in future, but simply to provide that all penalties inuring to the state should go to the school fund. In view of these authorities in our State and elsewhere upholding the constitutionality of such acts which had been customarily passed, time out of mind, it can not be said that this act is plainly and clearly unconstitutional. The doubt, if any, must be resolved in favor of the General Assembly. In addition to these cases directly in point, acts of the Legislature giving the penalty in whole or in part to the person suing for the same, have been recognized as valid in numerous cases since the amended Constitution of 1875, thus in effect approving the direct decisions. Branch v. R. R., 77 N.C. 347; Keeter v. R. R.,86 N.C. 346; Whitehead v. R. R., 87 N.C. 255; Branch v. R. R.,88 N.C. 570; Middleton v. R. R., 95 N.C. 167; McGowan v. R. R., ib., 417; McGwigan v. R. R., ib., 428; Hines v. R. R., ib., 434; Williams v.Hodges, 101 N.C. 300; Cole v. Laws, 104 N.C. 651; and there are more than twice as many more All of these
(506) were erroneously decided and must be overruled if the plaintiffs in them were now, by a new construction of the Constitution, held not to have had a cause of action, a defect which must have been noticed, in this Court, without exception below, if such defect had existed. IndeedKatzenstein v. R. R., in which this Court expressly held that the amendment to the Constitution was not a restriction upon the Legislature prohibiting qui tam, or popular actions as they are sometimes termed, has been cited as authority in no less than twelve cases.Middleton v. R. R., 95 N.C. 167, citing numerous precedents, not only recognizes the power of the Legislature to authorize the penalty to be given to "any one who shall sue for the same" but that the action can be brought in the name of such party alone without joining the State as relator. This is cited and approved in Maggett v. Roberts,108 N.C. 174. The judicial construction of this provision has been uniform and frequently repeated. The legislative construction has been no less so. In the reply of the Court to the Governor as to the "judicial term of office, 114 N.C. 922, on page 927, the Court says, "We rest our opinion of the construction of the Constitutional provision upon the duty and propriety of adhering to the settled legislative construction, acquiesced in until a very recent period by the people acting in public and private capacities." By the same reasoning, the construction of this constitutional provision has had ten times over "a settled legislative construction" which should be adhered to. Scarcely a single Legislature since the Convention of 1875, has passed which did not recognize the power and duty of the Legislature in this particular by enacting or amending statutes conferring the whole or a part of penalties upon persons suing for the same. This has (507) been acted on without question in that department of the government. So universally has it been "acquiesced in by the people in public and private capacities" that only once is it known to have been questioned by the pleadings in all the actions brought to collect penalties, Katzenstein v. R. R., supra, and then by an exceptionally able Court — Smith, Ashe and Ruffin — the legislative construction was unanimously sustained, and has been repeatedly and uniformly recognized since as the law in numerous cases, many of them above cited. It has thus twenty years' uniform construction by both the legislative and judicial departments, and should be deemed settled, if anything can be. The Act of 1889 (ch. 199, sec. 36), requiring solicitors to prosecute and collect penalties and forfeitures, applies only to judgments entered incidentally in due course of procedure. It does not extend to those cases where no judgment has been rendered but an action is simply authorized to be brought for a penalty. The words "penalties, forfeitures and fines" in Art. IX, sec. 5, contemplate
primarily only those imposed incidentally in the course of legal procedure but are broad enough to embrace those for which due action must be brought provided the State is empowered to sue for them.
2. From time immemorial in the English law, it has been found that qui tam actions, actions in which the penalty goes in whole or in part to the person suing for the same, were an efficient, and indeed sometimes an indispensable means of enforcing the law in many cases, as for the breach or neglect of duty by officers and corporations, and Parliament in England and legislative bodies in this country have freely enacted statutes for the enforcement of laws by such actions. There has been no agitation for the repeal of such statutes, and if there had been a radical departure intended by the amendment of 1875 by which the General Assembly would have been deprived of its power to authorize qui tam actions, such inhibition would have been clear and unmistakable and would have been placed in the chapter relating (508) to the legislative department, among the restrictions upon the exercise of legislative power. Art. 2, secs. 10, 11, 12, and 14. Instead of that this provision is found in Article IX, upon Education, and in the section transferring to the school fund certain sources of revenue, and among others is incidentally mentioned "also the clear proceeds of all forfeitures and penalties." It would be a strange construction that this incidental reference in the article on Education was a reversal of the policy of hundreds of years, and a clear, distinct inhibition upon the Legislature against permitting qui tam actions any longer, and an enactment that hereafter the State alone should recover penalties in civil actions. On the contrary, as already held by our Court and also by the Missouri Court upon an almost identical Constitutional provision, the purport and true meaning of this clause of the Constitution is not to vest the sole right to collect penalties in the State, but to vest in the school fund the clear proceeds of all penalties which by authority of law should be collected for the benefit of the State. It is best to stand super viasantiquas.
3. If the constitutional provision were clear that the General Assembly was prohibited from any longer permitting qui tam actions or the collection of penalties by any one except the State, public policy could not be considered. But when such restriction is not clearly shown, considerations of public policy may be invoked on the ground that there was no great recognized evil or public agitation which called for so radical a departure as depriving the law-making power of its immemorial discretion to authorize the recovery of penalties by private persons, as it has done in section 3842 of The Code, or by official persons, as in Section 3844 of The Code, as well as in divers and sundry other statutes. Not only would this restriction upon the
Legislature virtually repeal the penalties prescribed for breaches of (509) duty in these and similar cases, but it would virtually repeal all statutes providing penalties for delay in shipping freight, and other penalties for breach of duty by corporations, since penalties will be rarely sued for if there is no benefit to accrue to the party bringing the action. It would indeed be a virtual repeal of this long recognized and efficient mode of enforcing the law, and would leave its enforcement in eyect [eject] solely to the criminal side of the docket, with its official prosecutors and the benefit to the defendant of the preponderance of challenges, the protection of the doctrine of reasonable doubt and the other advantages with which the law favors a defendant on trial for crime. Such change not being called for by public policy, and such restriction upon the Legislature being against the experience and the public policy of centuries, if made, should appear clearly and unmistakably and not by inference from a mere provision assigning sundry funds for the support of education.
The Code, section 3842, defines (as does section 1090) two distinct violations of the law. The first (in Sec. 3842) for buying, selling or bartering by any weight or measure which has not been stamped or sealed as required by section 3841, and secondly for selling and delivering by less measure than the standard. For each offence a penalty of $40 is prescribed and the same act may be a violation of both provisions or of one only. A party could sell by unstamped measure or weights and violate the first clause and yet not sell by measure less than the standard, in which case he would not be liable to the second penalty. In the present case the defendant is not liable to the second penalty but on a dicerent ground, which is that the second penalty is restricted to articles sold and delivered by measure less than the standard (the word "weight" which appears in the first clause being (510) omitted), and the defendant is not liable to the second penalty because meat is not an article which is not sold by measure. An English case under a similar statute and exactly in point is Hughes v.Humphries, 3, E. B., 954. If it be objected that the jury has so found, inspection of the second issue shows that it does not come up to the statute, which imposes the penalty on any one who shall "sell and deliver" and the issue and response thereto does not find that there was anydelivery which is an essential, to constitute the penalty. As to the first clause, we concur with the learned counsel for the defendant that the words "sealed and stamped as aforesaid" refer to section 3841 as amended by chapter 100, Acts 1893, and that there is a violation of the statute only when the defendant has bought, sold or bartered by weights or measures which he did not "allow and permit" the standard keeper, who visited him for that purpose, to seal or stamp.
But the jury find in response to the first issue that the defendant sold meat to the plaintiff by "weights that had not been examined and adjusted by the standard keeper as required by the statute." These words "as required by the statute" in the verdict have the same reference to the amended section 3841 as the words "as aforesaid" in the statute, and can only mean that the defendant not having complied "as required" with the duty of "allowing and permitting" his weights and measures to be stamped and sealed, did sell meat by them. Upon the verdict the plaintiff was entitled to recover the forty-dollar penalty in each case upon the offense stated in the first clause of section 3842, but it was error to render judgment against him, for reason above stated, for any penalty in regard to the second clause of said section. (511)
The costs of the appeal will be divided between the parties.