Opinion
(June Term, 1848.)
1. Wardens of the poor, who are elected by the County Court, under the provisions of the act of 1846, ch. 64, are not subjected to any penalty for refusing to accept the appointment.
2. Penal statutes cannot be extended by equitable construction beyond the plain import of their language.
APPEAL from the Superior Court of Law of MARTIN, at Spring Term, 1848, Caldwell, J., presiding.
No counsel appeared in this Court for plaintiff.
Biggs for defendant.
The action is debt for a penalty of $20 for refusing to serve in the office of warden of the poor, to which the defendant was elected by the County Court of Martin at April Term, 1847. Many objections to the recovery were taken for the defendant, among which was one that the defendant, having been elected under the act of 1846, ch. 64, was not liable to a penalty. A verdict was taken for the plaintiff subject to the opinion of the court on that and other points of law. The presiding judge afterwards held that the penalty existed under the act of 1777, of which that of 1846 was an amendment, and judgment was entered against the defendant, and he appealed.
Without adverting to any other of the points reserved, the Court deems the judgment erroneous, upon the ground that no statute imposes a penalty on the defendant. That of 1846, under which he was elected by the County Court, gives none. The case, then, depends on the previous (269) acts. Up to 1846, wardens of the poor were elected by the freemen of each county, and in case any so chosen refused to serve, or died or removed, others were appointed in their stead by those who did act — as provided in Laws 1777, ch. 117, and 1783, ch. 191. The former required overseers of the poor to elect two of their members wardens, and it gave a penalty of £ 5 against an overseer "elected according to this act" for refusing to serve, to be recovered by the wardens to the use of the poor; and it also gave a penalty of £ 20 against a warden for refusing to serve, to be recovered by an informer, one-half to his own use and the other half to the use of the poor. The act of 1783 provided that all the overseers should be wardens of the poor, and that all persons "duly elected" wardens, and refusing to qualify, should forfeit £ 10, to be recovered in any court of record by the county trustee, and applied to the use of the county. In the revision of 1836, ch. 89, those two acts are re-enacted as to the periods and modes of electing these officers; and in respect to the penalties it is provided "that every person elected a warden of the poor according to this act, who shall refuse or neglect to qualify, shall forfeit the sum of $20, to be recovered in any court of record by the chairman of the County Court, in an action of debt to the use of the county." Then comes the act of 1846, "to alter the modes of electing wardens of the poor," which provides that the county courts shall, at the first term after 1 January, 1847, elect wardens to serve for three years, and repeals so much of the first section of chapter 89, Revised Statutes, as relates to the time and manner of electing wardens.
From this compendium of the previous legislation it seems clear, upon the principles of construction applicable to penal enactments, that no one of the acts covers this case so as to subject the defendant to this penalty. Those of 1777 and (270) 1783 gave penalties of different amounts and recoverable by different persons. Besides, those acts were not in force after January, 1838, when the Revised Statutes went into operation. Therefore, the Rev. St., ch. 89, is the only one that bears on the point. That does not, like the act of 1783, give the penalty against all persons "duly elected," who shall refuse to qualify; but section 4 adopts the terms used in the act of 1777, that every person, "elected according to this act," who shall refuse to qualify, shall forfeit $20, to be recovered by the chairman of the County Court. Penal statutes cannot be extended by equitable construction beyond the plain import of their language; and the words here expressly restrict the penalty to the wardens elected according to that act, that is to say, by the people of the county or by the acting wardens in case of vacancies by refusal, removal or death. Judging from the special terms of the repealing clause in the act of 1846, it is very probable, as was said in argument, that the Legislature had no intention to abolish the penalties of the act of 1836. Indeed, it may be true that persons appointed by the acting wardens to supply vacancies may still be liable for those penalties. But that does not enable the Court to include wardens, elected by the County Court, within an act which in special terms expressly gives the penalty against such wardens as were elected by the people, or by the court of acting wardens, and refused to serve. The silence of the act of 1846 as to new penalties on the persons elected under it, or as to the extension to them of the penalties of the act of 1836 against the wardens chosen as therein directed, may probably be another example of inadvertent omission and imperfect legislation, incident to attempts to effect particular changes by persons who are not fully informed or who will not take into view the whole subject to which a bill relates. Certain it is, however, that the act of 1846 creates no penalty, and that while it does not expressly repeal those (271) given by the act of 1836, yet the words of the act of 1836, in themselves, do not include the case of the defendant, but are strictly confined to persons elected in a different manner.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Coble v. Shoffner, 75 N.C. 43; S. v. Midgett, 85 N.C. 541; McGloughan v. Mitchell, 126 N.C. 683; Turner v. McKee, 137 N.C. 258.