State to Use of Rogers v. Newton

*621 Smith, C. J., delivered the opinion of the court. 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 budg’et 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 *622 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 (G) 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 *623 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 *624 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 19301. Section 14, Chapter 255, Laws of 1936, does not refer to this liability, and the remedy theréfor 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.