Opinion
No. 34585.
September 22, 1941.
1. APPEAL AND ERROR.
In action on bond of county superintendent of education and pay certificates issued by him in amount exceeding school receipts or budget estimates for current fiscal year, circuit court properly held, in conformity with Supreme Court's opinion on prior appeal, that liability imposed by statute on superintendent to holders of such certificates for face value thereof is a "penalty" and hence that action was barred by limitation after lapse of over year since cause of action accrued (Laws 1936, ch. 255, sec. 14; Code 1930, sec. 2301).
2. STATUTES.
A "remedial statute" is one which cures defects in, or enlarges or abridges scope of, former law, such as statute granting a theretofore nonexistent remedy for wrong inflicted.
3. STATUTES.
A statute making wrongdoer liable to person wronged for fixed sum, without reference to damage inflicted by commission of wrong, is "penal statute."
4. LIMITATION OF ACTIONS.
The statutory provision that county superintendent of education shall be liable on his official bond to holders of pay certificates, issued by him in amount exceeding school receipts or budget estimates, for face value thereof, is not "remedial," but imposes a "penalty," so that action commenced on such certificates over year after issuance thereof is barred by limitation (Laws 1936, ch. 255, sec. 14; Code 1930, sec. 2301).
5. SCHOOLS AND SCHOOL DISTRICTS.
The statute declaring county superintendent of education liable on his official bond to holders of pay certificates, issued by him in amount exceeding school receipts or budget estimates, for face value thereof, without referring to his liability under prior act to school teachers and carriers for injuries inflicted on them by his violation of official duty in employing them, does not affect remedy therefor, unless pay certificate is issued to wrongfully employed teacher or carrier in amount of damage sustained by him, and superintendent's liability on such certificate is fixed at certain sum without reference to damage sustained by holder (Code 1930, sec. 2889; Laws 1936, ch. 255, sec. 14).
6. SCHOOLS AND SCHOOL DISTRICTS.
The liability, imposed on county superintendent of education by statute, to holders of pay certificates, issued by him to school teachers and carriers in amount exceeding school receipts or budget estimates, for face value thereof, is for fixed sum payable regardless of whether injury was inflicted on teacher, carrier, or any holder of certificates by issuance thereof (Laws 1936, ch. 255, sec. 14).
GRIFFITH and ROBERDS, JJ., dissenting.
APPEAL from the circuit court of Covington county, HON. EDGAR M. LANE, Judge.
E.L. Dent, of Collins, and Hannah, Simrall Foote, of Hattiesburg, for appellant.
As the declaration states a case under Chapter 255, Laws of 1936 — see Trantham et al. v. Russell, 171 Miss. 481, 158 So. 143, and the case at bar on former appeal — the only question for discussion on this appeal is whether or not the Statute of Limitations as contemplated and embraced in Section 2301, Code of 1930, applies. We are not aided in this discussion by the decision in the former appeal, because the plea of the one-year Statute of Limitations was not before the Court and was not filed until January 14, 1941. However, in one statement in the opinion as obiter dictum, the word "penalty" is used when the Court said: "This statute is highly penal and must be strictly construed against the penalty." This statement in the opinion and the case of Bank of Hickory v. May, 119 Miss. 239, 80 So. 704, was the basis on which the learned Circuit Judge applied the one-year statute and dismissed the suit.
The Bank of Hickory case based its recovery against the sheriff and his surety on Section 4669, Code of 1906, which is brought forward as Section 3316, Code of 1930; it could have recovered actual damages sustained by it for the failure of the sheriff to make due returns of the executions to the proper court, and the one-year Statute of Limitations would not have applied. A similarity of Section 3316, Code of 1930, and Section 14 of Chapter 255, Laws of 1936, may be noted, in that both authorize recovery. Section 3316, for all damages sustained by party aggrieved for failure to execute and return process, and the sheriff fined not exceeding $100, etc., and Section 14 of Chapter 255, Laws of 1936, makes the county superintendent and his official bond liable to the holders of pay certificates when issued in excess of the amount of money received for the current fiscal year or in excess of the budget estimate for the current fiscal year, and in addition to this civil liability, upon conviction, may be fined not exceeding $500, etc. On this thought is Section 3258, Code of 1930, requiring notice be given land owners when land sold for taxes.
The question of the one-year Statute of Limitations was before the Court in the case of McLendon v. Whitten et al., 95 Miss. 134, 48 So. 964. It appears that the chancery clerk failed to give the required notice to the land owner who was damaged by such failure in the sum of $75. Suit was filed more than one year after the failure of the clerk to serve the notice. The $25 penalty was not claimed.
The opinion in the Bank of Hickory case, surpa, appears to be based on the reasoning as set out in the case of Cox, Sheriff, v. Ross, Adm., 56 Miss. 481. This case was on a motion against the sheriff for failure to return an execution.
See Walton v. Boyett et al., 151 Miss. 726, 118 So. 629; Keystone Lumber Yard v. Y. M.V.R.R. Co., 97 Miss. 433, 53 So. 8; Metzger et al. v. Joseph, 111 Miss. 385, 71 So. 645; Wilkinson et al. v. Goza, 165 Miss. 38, 145 So. 91.
The plain intent of the Act is to compensate the holders of the certificates when wrongfully issued. The holders of the certificates have nothing to do with the penalty prescribed.
The two-year Statute of Limitations bars a criminal prosecution, Section 1194, Code of 1930, and as no period of limitations is prescribed to protect the holders or purchasers of the certificates against the fraud of the superintendent in issuing them, and the certificates, budget estimates, and amount of money received on account of the public schools for the current fiscal year, all being in writing, the better reasoning would appear to be that Section 2292, Code of 1930, applies. This would be in accord with the pronouncement in the case of Rather et al. v. Moore, 179 Miss. 78, 173 So. 664.
See case of Commercial Bank v. Auze et al., 79 Miss. 609, 21 So. 754; Beck v. Tucker, 147 Miss. 401, 113 So. 209; State, for use of Smith v. Smith et al., 156 Miss. 288, 125 So. 825.
It thus appears from the cases cited herein — all Mississippi cases — that the words "penalty or forfeiture" in Section 2301, Code of 1930, which place a limitation of one year upon all actions and suits to recover the penalty or forfeiture, pecuniary or otherwise, accruing under the laws of this state, refer to something imposed in a punitive way for an infraction of a public law, and do not include a liability imposed by statute solely for the purpose of redressing a private injury, even though the wrongful act is a public offense and punishable as such, and that the statute warrants recovery of actual damages for a breach of official duty, though the penalty be barred. This is somewhat analogous to an action of trespass for cutting timber, in that the elapse of one year would bar the penalty but would not bar an action for actual damage or rather the actual value of the timber.
See 59 C.J. 1111; 37 C.J. 789 and 790; 25 R.C.L. 1086, Sec. 303; Slater v. A.T. S.F.R. Co., 91 Kan. 226, 137 P. 943, 1916F L.R.A. 949; Aylsworth v. Curtis, 33 L.R.A. 110.
As most of the cases above cited refer to the leading case of Huntington v. Attrill, 146 U.S. 657, 36 L.Ed. 1123, 13 Sup. Ct. 224, on the question of whether the wrong sought to be redressed is a wrong to the public which is penal or a private wrong which the statute makes remedial and compensatory, which has been approved in the case of L. N.R.R. Co. v. McCaskell, 98 Miss. 20, 53 So. 348.
See Meeker v. LeHigh Val. R. Co., 236 U.S. 412, 35 S.Ct. 328. Butler Snow, of Jackson, for appellee, National Surety Corporation.
The sole question presented by this appeal is whether this particular suit is barred by the one-year Statute of Limitations. To answer the question, it is necessary to determine whether the thing sued for is a penalty within the meaning of Section 2301, Code of 1930. This in turn seems to depend upon whether the word "penalty" in Section 2301 is used in its strict or primary sense as punishment for a wrong to the public, or is used in the broader sense as a pecuniary punition exacted by law by way of punishment for doing some act that is prohibited or omitting to do some act which is required to be done, and as including any liability imposed in favor of the individual wronged by such infraction of law, not limited to the actual damages sustained. It is clear from the allegations of the declaration and the opinion of the Court on the former appeal that appellant predicates liability strictly and alone upon Section 14 of Chapter 255, Laws of 1936. The Court has heretofore characterized the thing sued for as a penalty.
The Legislature has recognized that the thing sued for is a penalty. The title of Chapter 255, Laws of 1936, shows the legislative intent was to impose penalties for the violation of the act.
It is well settled in this state that where the Legislature prescribes a particular penalty, or prescribes a certain recovery for doing an act, or for the wrongful failure to discharge a duty, the legislative designation of the amount to be recovered is controlling. In such a situation, the recovery can be neither more nor less than the amount specified by the statute. Fidelity Deposit Co. v. Wilkinson County, 109 Miss. 879, was followed and approved in G. S.I. Railroad Co. v. Laurel Oil Fertilizer Co., 172 Miss. 630. And it is important to note that in the case last cited the one-year Statute of Limitations was applied.
As we see it, the principles announced in Bank of Hickory v. May, 119 Miss. 239; and G. S.I. Railroad Co. v. Laurel Oil Fertilizer Co., 172 Miss. 630, are controlling. These cases show that the word penalty in Section 2301 is not used in the strict and primary sense. Appellant here, the same as appellant in the Bank of Hickory case, relies upon such authorities as Metzger v. Joseph, 111 Miss. 385. and it will be noted that the same judge who wrote the opinion in the Metzger v. Joseph case delivered the opinion in Bank of Hickory v. May. The Metzger case is distinguished and explained in the Bank of Hickory case. And the Court conceded that the liability involved in the Bank of Hickory case was not a penalty in the strict and primary sense.
And it may be noted that the Court in determining the true nature of the thing sued for does not regard the name by which it is designated in the statute as controlling, but looks beyond the language and determines the true nature of the exaction imposed. It is the substance and effect of the statute, rather than its form, that is to be considered in determining whether it is penal. G. S.I. Railroad Co. v. Laurel Oil Fertilizer Co., 172 Miss. 630; Goodstein v. Board of Levee Commissioners, 153 Miss. 783.
W.U. Corley, of Collins, for appellee.
We deem it unnecessary to set out Section 14, Acts of 1936, referred to as Chapter 255, except to restate that it makes the Superintendent and his sureties liable to the holders of certificates issued in violation of that section, and in addition to such liability imposes a fine and jail sentence for its violation. The contents of that section caused this court to say in National Surety Corporation et al. v. State for Use of Mrs. C.C. Rogers, 198 So. 299, "This statute is highly penal and must be strictly construed against the penalty."
We know of no case that goes more fully into the question of a penal statute, than the case of Bank of Hickory v. May, 119 Miss. 239, 80 So. 704, citing Cox v. Ross, 56 Miss. 481; Simms, Billups Co. v. Quinn, Sheriff, 58 Miss. 221; Skinner v. Wilson, 61 Miss. 90; Therrell v. Ellis, 83 Miss. 494, 35 So. 826; McClendon v. Whitten et al., 95 Miss. 124, 48 So. 964.
In G. S.I. Railroad Co. v. Laurel Oil Fertilizer Company, 158 So. 778, we have a suit for both damages and a statutory penalty. The plea of the one-year Statute of Limitation was sustained by the court below and affirmed by this court, and re-affirmed at 160 So. 564. The case proceeded to trial and judgment on the charges — not penal.
See Watson v. Boyett, 118 So. 629.
Trantham v. Russell, 171 Miss. 481, 159 So. 143; McDonald Sons v. McQueen, 194 So. 473, both distinguished from case at bar.
It appears from counsel's brief that the statute does not apply because he might be suing for actual damages; but it will be noted that the suit is founded on Section 14, Chapter 255, Acts of 1936. Therefore Bank of Hickory v. May, 119 Miss. 239, 80 So. 704, has no application along that line, neither does McClendon v. Whitten, 95 Miss. 124, 48 So. 964, for in that case the penalty is limited to one year, but actual damages is not; hence he is bound by his pleadings, in that it is founded on a penal statute and no other. Neither does Cox v. Ross, 56 Miss. 481, help the cause. Watson v. Boyett, 118 So. 629; Keystone Lumber Yard v. Y. M.V. Railroad, 53 So. 8; Metzger et al. v. Joseph, 111 Miss. 385, 71 So. 645; Wilkinson v. Goza, 145 So. 91; McLendon v. Whitten case, 48 So. 964; L. N.R.R. Co. v. McCaskell, 98 Miss. 20, 53 So. 348; Smith v. Smith, 125 So. 825, distinguished from case at bar.
E.L. Dent, of Collins, and Hannah, Simrall Foote, of Hattiesburg, for appellant, in reply.
Our opponents also say, "to answer the question, it is necessary to determine whether the thing sued for is a penalty within the meaning of Section 2301, Code of 1930." And with this statement, we agree.
It is our conception that the answer to this inquiry is not to be found merely in the numerous decisions of our Court, as cited and relied on by our opponents, but the answer is really to be found in a complete study and analysis of Chapter 255 of the Laws of 1936 and the applicable statutes and Court decisions. This study and analysis must, of course, take into consideration the conditions that existed and the ends sought to be attained by these legislative enactments.
It is true that the particular part or portion of Chapter 255, Laws of 1936, declaring and fixing the rights here sought to be enforced is found in Section 14 of this Chapter; but the particular portion of that section declaring the liability herein relied on is virtually a rescript from Section 6732 of the Code of 1930. So, it is necessary, in order to properly adjudicate the issue presented by this record, to consider this whole Chapter and also said Code Section, as well as the Court decisions.
The appellant in this case is not dependent alone upon Section 14 of Chapter 255 of the Laws of 1936 for recovery; but, in truth and in fact, the provisions of this section are merely a rescript of a portion of Section 6732 of the Code. In other words, when appellee, George A. Newton, was elected County Superintendent of Education of Covington County, and when appellee, National Surety Corporation, made his bond, the said appellees then and there entered into a solemn contract with appellant to do just exactly the thing appellant is suing for in this case.
In State for Use of Smith v. Smith, 156 Miss. 288, 125 So. 825, this Court said: "There is another reason why the statute does not here apply, which is that the official bond of a public officer is a contract which the law requires him to execute, by which he and his sureties covenant and agree that he will faithfully discharge all the duties of his office, which contract is breached by the failure of the officer to discharge any of his official duties. Lewis v. State, 65 Miss. 468, 4 So. 429. It follows, therefore, that, in the absence of a statute to the contrary, the limitation within which an action must be brought on an official bond is that provided by statute for actions on written contracts. 37 C.J. 782."
Is there anything highly penal about this statute? The law makes it the duty of the superintendent to know, before making contracts with teachers, the amount of money shown by the budget to be available for paying teachers; and then the law makes it the duty of the superintendent not to make contracts with teachers for amounts that will exceed this budget. Suppose the statute had stopped at this point and had not said anything about a breach of these duties? What would be the measure of recovery? Does it not logically follow that any teacher with whom the superintendent made a contract would have the right to recover from the superintendent such amount of money as the teacher lost, by reason of the superintendent's failing to perform a statutory duty? The official bondsmen simply join in a contract with the superintendent to guarantee everybody against loss because of any breach of duty. In other words, the superintendent and his bondsmen enter into a solemn contract for the performance of the duties required by the statute.
There is no provision in either of these statutes that suits on these contracts must be brought within one year and so, under the case of Smith v. Smith, supra, Section 2301, has no application.
Appellees cite and rely on the case of Bank of Hickory v. May, 119 Miss. 239, 80 So. 704. This case involved a motion against a sheriff and the surety on his official bond to recover because of failure to execute and return an execution. The Court held that the action was barred by the one-year Statute of Limitations relied on in the case at bar. The case arose under Section 4670 of the Code of 1906. A mere comparison of the objects and purposes of the section of the Code involved in the Bank of Hickory case with the statutory provisions involved in the case at bar completely disproves the applicability of the holding in the Bank of Hickory case.
This is a suit to recover a debt that arises by contract, and not the penalty that is imposed by statute. It, therefore, follows that Section 2301 of the Code has no application to the case at bar.
This is an action by the use-appellant on the official bond of a county superintendent of education under Section 14, Chapter 255, Laws of 1936, on several pay certificates issued by the superintendent to school teachers and carriers in violation of that statute. So much of the statute as here applies is, as follows: "It shall be unlawful for any county superintendent of education to incur obligations payable out of the county school funds in excess of the amount of funds available for the support and maintenance of the public schools during the current fiscal year, or in excess of the amount of the budget estimates for the current fiscal year. And it shall be unlawful for any county superintendent of education to issue pay certificates to teachers, school carriers, or other persons, in excess of the amount of money received on account of the public schools for the current fiscal year or in excess of the budget estimates for the current fiscal year, and any certificate so issued shall be illegal and void; but the county superintendent shall be liable on his official bond to the holders of such certificates for the face value thereof. Any county superintendent of education who shall make contracts with teachers or school carriers in violation of the provisions of this act, or who shall incur indebtedness in operating the public schools in excess of the amount of funds made available for the support and maintenance of the public schools for the fiscal year or in excess of the amount of the budget estimates for the fiscal year, or who shall issue pay certificates in excess of the amount of funds received on account of the public schools for the fiscal year or in excess of the amount of the budget estimates for the fiscal year, shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not to exceed five hundred dollars ($500.00), or by imprisonment in the county jail not to exceed six (6) months, or by both such fine and imprisonment within the discretion of the court."
On a former appeal herein, National Surety Corporation et al. v. State for Use of Rogers, 189 Miss. 540, 198 So. 299, 302, one of the questions presented was whether Mrs. Rogers had the right to sue on the certificates. The appellant's contention there was that the liability imposed by the statute is a penalty and therefore the right to recover it is not assignable. The Court held that it is a penalty and not assignable under the general law, but that the statute itself confers the right upon any holder of such pay certificates to sue thereon. This liability imposed by the statute was there referred to five separate times as a "penalty." On return of the case to the court below, the appellees plead the limitation of Section 2301, Code of 1930, which provides that: "All actions and suits for any penalty or forfeiture on any penal statute, brought by any person to whom the penalty or forfeiture is given, in whole or in part, shall be commenced within one year next after the offense was committed, and not after." The Court, as it should have done, followed our former opinion and held that the liability here imposed on the superintendent to be a penalty and therefore, as more than a year had elapsed since the cause of action accrued, it was barred by limitation.
Leaving out of view the law of the case rule and expressing no opinion as to its applicability vel non here, the question presented is whether this Court should now depart from its holding on the former appeal herein and hold this liability not to be a penalty. We shall assume, though the fact may be otherwise, that the words "penalty" and "forfeiture" are used in Section 2301, Code of 1930, as being synonymous and interchangeable.
In our opinion on the former appeal herein, to which we adhere, it was said that "this statute is highly penal." An examination of the statute discloses that this is in accord with the legislative intent. Its sanctions are designated as penalties in its title, which sets forth that its purpose, among other things, is "To regulate the expenditure of school funds in the several counties and separate school districts; to restrict the amount of such expenditures to amount of revenue available therefor; and to provide penalties for violations of the provisions of this act." Two penalties are imposed by Section 14 of the Act on county superintendents of education to punish them for, and to deter them from, violating the section: (1) Payment of the face value of pay certificates wrongfully issued; and (2) fine and imprisonment or both for the violation of any of the provisions of the section. That the first is not payable to the State, but to the holder of the certificate does not take it out of the penal category. Bank of Hickory v. May, 119 Miss. 239, 80 So. 704; 59 C.J. 11; 25 C.J. 1149, 1178. This fact is recognized by Section 2301 of the Code hereinbefore set out, which applies only to penalties and forfeitures payable to individuals. But, it is said that this provision of the statute is remedial and not penal. The title of the statute, in this connection, refers only to penalties and does not remotely indicate that any of its provisions are simply remedial. But that aside, a remedial statute is one that cures defects in, or enlarges or abridges the scope of, a former law. 1 Blackstone's Com. 86; 59 C.J. 1106; 25 R.C.L. 765. E.g., a statute that grants a theretofore nonexistent remedy for a wrong inflicted. Metzger et al. v. Joseph, 111 Miss. 385, 71 So. 645. A statute that makes a wrong-doer liable to the person wronged for a fixed sum without reference to the damage inflicted by the commission of the wrong is penal. Bank of Hickory v. May, supra; Gulf S.I.R. Company v. Laurel, etc., Co., 172 Miss. 630, 158 So. 778, 159 So. 838, 160 So. 564; O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980; 25 C.J. 1178, sec. 72.
When tested by these rules, it will appear that this provision of Section 14, Chapter 255, Laws of 1936, is not remedial but imposes a penalty.
A county superintendent and his bondsmen are liable to school teachers and carriers for any injury inflicted on them by the superintendent's violating his official duties in employing them. Section 2889, Code of 1930. Section 14, Chapter 255, Laws of 1936, does not refer to this liability, and the remedy therefor is in no way affected thereby unless a pay certificate is issued to the wrongfully employed school teacher or carrier, the face amount of which covers the damage he has sustained, and the liability of the superintendent on this certificate is fixed at a sum certain without reference to the damage sustained by the one to whom the certificate was issued. The liability imposed is not for wrongfully employing a teacher or carrier, but for issuing to him a pay certificate without the issuance of which the statute imposes no liability on the superintendent to the teacher or carrier. Bearing in mind that the issuance of this certificate of itself inflicts no injury on the school teacher or carrier, it will readily be seen that the liability here imposed is for a fixed sum to be paid whether injury has been inflicted or not on the teacher or carrier by the issuance of the pay certificate, or on any holder thereof.
The judgment of the court below should be and is affirmed.
DISSENTING OPINION.
The rule is established, without dissent, that a penal statute is one which prescribes a punishment, pecuniary or otherwise, for a wrong to the public, while one which provides for the redress of an injury to an individual is remedial. And the same statute may be both penal and remedial, that is to say, it may be penal in one part and remedial in another. And that is the sort of statute which we have here. But a statute which furnishes redress to an individual will nevertheless be penal if it allow recovery by a party not harmed by the unlawful act, or where a fixed sum is permitted without reasonable relation to the actual damage, or where an arbitrary amount is allowed in addition to the damage.
The majority opinion proceeds upon the contention that the issuance of the certificate did no harm to the teacher, wherefore to allow her or her assignee to recover the amount of the certificate would make the statute penal and not remedial. This, it seems to me, is too narrow a construction. By the same reasoning it would follow that, since a person who pays usury is actually harmed only to the extent that he paid more than the legal rate of interest, if allowed to recover all the interest paid, the statute so allowing would be penal and an action barred after one year; but this Court has repeatedly held that the one-year statute does not apply.
The statute in question is one among others which have been enacted in recent years in the endeavor to put counties, municipalities and other subdivisions of the state on a cash rather than a credit basis, in the ordinary administration of their affairs. For instance, under Section 5979, Code 1930, it is provided that "no warrant shall be issued or indebtedness incurred by any county or municipality unless there is sufficient money in the particular fund from which the allowance is or must be made, to pay such warrant or indebtedness." For years before the enactment of those statutes, it was no uncommon thing that the warrants or pay certificates of the various subdivisions of the state would, for want of seasonable payment, be peddled around everywhere seeking speculators in depreciated paper who, not knowing themselves what the paper was worth, would buy at whatever the present necessities of the holders would compel them to take, often as low as fifty cents on the dollar, and the pay certificates and pay warrants of teachers were notoriously, and often pitifully, among those subjected to this evil.
The paramount purpose of the statute in question was to afford protection to teachers, as well as the holders of these pay certificates, and to remedy the condition in which they so often had found themselves. For several reasons it was not so easy, as in other cases of county or municipal obligations, to provide an effective and at the same time practicable plan in respect to contracts with, and the pay of, teachers. By far the most of the teachers, outside municipal districts, are without any reserved capital and must depend for their livelihood upon their monthly salaries, and that this be paid month by month. Their positions, as related the county superintendent of education, are such that they could scarcely be expected to question any statement made to them by him as to those things pertaining to the inside of his office with which, under the law, he is required to be familiar, and with which they had no reasonable means of becoming familiar.
Certainly it is the duty of a county superintendent to know the amount of the funds available for the support and maintenance of the public schools for the current fiscal year, and when the statute made it unlawful for him to incur obligations for the year in excess of such funds, the effect of the statute was that, when the superintendent made a contract with a teacher, such action amounted to a representation on his part to the teacher, and upon which she had the right to rely, that the contract was within the available funds and that the pay certificates issued under the contract would be valid for the full amount thereof. A teacher cannot receive pay without a contract or without a pay certificate issued thereunder. The possession of a contract to teach and the performance of the duties thereunder, entitles the teacher to the pay certificates.
When, therefore, the superintendent made the contract carrying, as a legal result, the aforesaid representations by him and the teacher acted on it, as she had the right to do, it was but declaratory of a principle of the common law itself when the statute made the superintendent liable for the amount of the contract and the pay certificates which were merely evidentiary of the contract plus the performance thereof by the teacher. Had she been informed by the superintendent at the time the contract was made, as it was his duty to inform her, that the funds were insufficient, and that therefore the contract was illegal and that no valid pay certificate could be issued thereunder, the teacher could have declined and sought work where she would be paid, and presumably, when nothing to the contrary appears, at as high a rate as the tendered contract carried. To say, therefore, that the illegal issuance of the pay certificate did no harm, and that making the superintendent liable for the amount thereof is penal, is to look at only a part of the picture, is to adhere to the shadow not the substance, is too narrow a construction, and in my judgment results in a denial of simple justice, as well as an incorrect application of the true principles of the law. A common concomitant of unpaid obligations issued by counties, cities, and other subdivisions, is the repeated promise made to the holders that in a little while longer the obligation will be paid. They are besought to wait patiently, and now the court says if, thus further entrapped, they let the short period of a year get by, they get nothing for their work. Had the statute not permitted the certificates to be assigned whereby those with the means to wait could take them, and thus allow the teacher to receive her pittance as earned, a stronger contention for the penalty idea might perhaps be presented; but such is not the statute.
Roberds, J., joins in the above dissent.