Opinion · Supreme Court of North Carolina
Smithwick v. . Williams
Smithwick v. . Williams, 30 N.C. 268 (N.C. 1848)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1848-06-05
- Topic
- general
Ruffin, C. J. 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 *269 by the County Court, gives none. The case then depends on the previous Acts.
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SMITHWICKv. WILLIAMS,30 N.C. 268(1848)
SIMON M. SMITHWICK, CHAIRMAN, ETC., v. HENRY WILLIAMS.
Supreme Court of North Carolina
(June Term, 1848.)
2. Penal statutes cannot be extended by equitable construction beyond the plain import of their language.Page 197
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 tothisact," 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 ofPage 1991836, 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, andvenire 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.