Action for Penalty — Qui Tam Action — Party Plaintiff — Tax on — Fertilizers — Constitutionality — Interstate Commerce.
1. In an action for a penalty the person suing therefor is the proper party plaintiff unless the statute directs otherwise.
2. Under sections 2190, 2191, and 2193 of The Code, requiring each sack of fertilizer sold to have a tag attached and affixing a penalty for noncompliance therewith, to be recovered by any one suing therefor, the person suing for the penalty, and not the Department of Agriculture or the State, is the proper party plaintiff.
3. A statute providing for the recovery of penalties by private persons is not in conflict with section 5 of Art. IX of the Constitution which appropriates the net proceeds of all fines and penalties to the school fund. ( Sutton v. Phillips, 116 N.C. 502, followed.)
4. The statute (sections 2190, 2191, and 2193 of The Code) requiring each sack of fertilizer sold in this State to have a tag affixed thereto is not in violation of clause 3 of section 8 of Article of the Constitution relating to interstate commerce.
(122) FURCHES, J.
This is an appeal from the judgment of the Court below upon complaint and demurrer. The demurrer admits the facts stated in the complaint, and assigns four grounds upon Atty. which it is contended the plaintiff should not recover.
The first assignment can not be sustained, as the party suing is the proper plaintiff, unless the statute creating the penalty provides otherwise. Burrell v. Hughes, 116 N.C. 430.
The second assignment can not be sustained, as the party claiming the penalty is the proper plaintiff, and not the State. Middleton v. Railroad, 95 N.C. 167.
The third assignment can not be sustained, as this question has been decided and has been expressly held to be constitutional in Sutton v. Phillips, 116 N.C. 502, and a number of other cases there cited.
As to the fourth assignment, we are somewhat at a loss to see its relevancy to this case. And we regret that the case was not argued for the defendant in this Court. As we understand the facts from the pleadings, the defendant is a domestic corporation and the plaintiff is a resident of Wake County. And it is not plain to us how it is that a question of interstate commerce is involved, as we understand from plaintiff's attorney it was contended in the court below. But if there is such a question involved it can not be sustained by defendant. This statute and this very question have been discussed in a well-considered opinion by Judge Seymour of the United States District Court and held to be constitutional. And while we do not consider ourselves bound by this opinion as authority, still we believe it to be (123) founded on sound reasoning and authority and a correct exposition of the law. 52 Fed., 690. We find no error, and the judgment is
AFFIRMED.
Cited: Carter v. R. R., 126 N.C. 444; S. v. Maultsby, 139 N.C. 584.