{
  "id": 8690319,
  "name": "SIMON M. SMITHWICK, Chairman, &c. vs. HENRY WILLIAMS",
  "name_abbreviation": "Smithwick v. Williams",
  "decision_date": "1848-06",
  "docket_number": "",
  "first_page": "268",
  "last_page": "271",
  "citations": [
    {
      "type": "nominative",
      "cite": "8 Ired. 268"
    },
    {
      "type": "official",
      "cite": "30 N.C. 268"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T20:50:05.193463+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "SIMON M. SMITHWICK, Chairman, &c. vs. HENRY WILLIAMS."
    ],
    "opinions": [
      {
        "text": "Ruffin, C. J.\nWithout 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 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 \u2014 as provided in the Acts of 1777 c. 117, and 1783 c. 191. The former required overseers of the Poor to elect two of their members Wardens ; and it gave a penalty of \u00a35 against an overseer \u201c elected according to this Act\u201d for refusing to serve, to be recovered by the Wardens to the use of the Poor ; and it also gave a penalty of \u00a320 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, \u201c duly elected\u201d Wardens, and refusing to qualify, should forfeit \u00a310, 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, c. 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, \u201c 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.\u201d Then comes the Act of 1846, \u201cto alter the modes of electing Wardens of the Poor;\u201d which provides that the County Courts shall, at the first term after the first day of January, 1847, elect Wardens to serve fop, three years, and repeals so much of the first section of the 89th chapter of the Revised Statutes, as relates to the time and manner of electing Wardens.\nFrom this compendium of the previous legislation, it seems clear, upon the principies 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 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. Slat. c. 89, is the only one that bears on the point. That does not, like the Act of 1783, give the penalty against all persons \u201c duly elected,\u201d who shall refuse to qualify; but s. 4, it adopts the terms used in the Act of 1777, that every person, \u201celected according to this Act,\u201d 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 1838. 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 impei\u2019fect 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 ex pressly repeal those 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.\nThe judgment must therefore be reversed, and a venire de novo awarded.\nPer Curiam. Judgment reversed and venire de novo.",
        "type": "majority",
        "author": "Ruffin, C. J."
      }
    ],
    "attorneys": [
      "No eounsel appeared in this Court for the plaintiff.",
      "Biggs, for the defendant."
    ],
    "corrections": "",
    "head_matter": "SIMON M. SMITHWICK, Chairman, &c. vs. HENRY WILLIAMS.\nWardens 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.\nPenal statutes cannot be extended by equitable construction beyond the plain import of their language.\nAppeal from the Superior Court of Law of Martin County, at the Spring Term, 1848, his Honor Judge Caldwell presiding.\nThe 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, c. 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 after-wards 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 ap\u00a1-p.ealed.\nNo eounsel appeared in this Court for the plaintiff.\nBiggs, for the defendant."
  },
  "file_name": "0268-01",
  "first_page_order": 282,
  "last_page_order": 285
}