dissenting. My first impression of this case was that the plaintiff had alleged facts sufficient to constitute a cause of action, and while he had not pleaded with technical accuracy and perhaps had stated his grievance somewhat in-artificially, yet there was just enough said to require an answer from the defendant. A more careful and critical examination of the case and a better understanding of the facts convince me that my first impression was not correct, and that there are defects in the complaint which, in the present state of the case, namely, a defective complaint and a demurrer thereto sustained, must be fatal to the plaintiff’s recovery, at least in this action. The pleadings in the justice’s court were oral, but the cause of action is set out in the summons, and the substance of it, which is stated in the return of the justice as required by The Code, section 840, Rule 2, is as follows: “The plaintiff complained of the defendant for the non-payment of the sum of $200 due by reason of penalty accrued under section 711 of The Code of North Carolina, for his neglect of duty as a member of the Board of Commissioners of Orange County; for his failure to require an itemized account, fully verified by the oath of John Laws, before he audited and approved said account, as required by section 754 of The Code.” The duty, for a breach of which the plaintiff claims a penalty, is thus prescribed by law: “No account shall be audited by the board for any services or dis*257bursements unless it is made out in items and has attached to and filed with it the affidavit of the claimant that the services therein charged have been in fact made and rendered, and that no part thereof has been paid or satisfied. Each account shall state the nature of the services, and where no specific compensation is provided by law it shall also state the time necessarily devoted to the performance thereof. The board may disallow or require further evidence of the account, notwithstanding the verification.” The Code, sec. 154. The penalty for a violation of the duty required by that section is imposed by section 111 as follows: “Any commissioner who shall neglect to perform any duty required of him by law as a member of the bqard shall be guilty of a misdemeanor, and shall also be liable to a penalty of $200 for each offense, to be paid to any person who shall sue for the same.” It will be observed that by section 154 it is provided that- the duty of the commissioners to require an itemized account shall extend only to accounts for services rendered and disbxxrsements made by the claimant for the benefit of the county, and the requirement that the statement shall be verified is'confined only to accounts for services thus rendered. In the latter case the claimant must not only itemize his account, but must make oath “that the services therein charged have been in fact made and rendered, and that no part thereof has been paid or satisfied.” The use of the word “made” in that part of the section last quoted would indicate that it was intended that accounts for disbursements should also be verified, as the verb “made” would aptly apply to disbursements, whereas it does not to services. We would not, in correct speech, use the term “services made” by the claimant. This apparent inaccuracy in the form of expression cannot, as we will presently see, have the effect to enlarge the scope of the statute or to extend its operation beyond the meaning of the words actually used. But if it could have such effect in the interpretation of *258a penal statute, and the section be construed to require an itemized and verified statement, both in the case of accounts for services performed and in that of disbursements made for and in behalf of the county, we still think that plaintiff’s case as stated in his complaint is without the statute, as from the statement of the legislation upon this subject which we have made, it seems clear, upon the settled principles of construction applicable to penal enactments, that no one of the duties required to be performed by the commissioners comes within this case so as to subject the defendant to the penalty imposed by section 711 of The Code.
It is perfectly familiar learning, being one of the first principles of statutory interpretation, that penal laws must be construed strictly and it is not permissible to enlarge their operation by implication nor by any equitable construction, but we must ascertain their meaning only by the express letter. They must be restricted to the plain import of the language used to convey the intent of the Legislature. Smithwick v. Williams, 30 N. C., 268; Coble v. Shoffner, 75 N. C., 42; State v. Midgett, 85 N. C., 42. In declaring upon a penal statute certain rules of pleading', besides the general rules, are specially applicable to such cases. The plaintiff in his complaint under the general rule must show a good title to that which he seeks to recover, and if he fails in this respect the defendant may demur, move in arrest of judgment, or bring a writ of error. But the special rules require him, in an action for a penalty, to set forth every fact essential to show that his case is within the letter and spirit of the law by which it is given. He must plead with particularity so that the Court may clearly see, without the necessity of making any inference, implication or conjecture, that the unlawful act has been done or that the duty enjoined has been omitted by the defendant. No intendment will be made in his favor. He must succeed, if at all, upon the facts as he states them, and *259not upon any deduction from them or any mere statement of a conclusion of law. Archbold Civ. Pl., 106, 109; 1 Chitty Bl., 372; 16 Enc. Pl. & Pr., 274, 275, 276; Wright v. Wheeler, 30 N. C., 184. While the distinction between actions at law and suits in equity ánd all feigned issues have been abolished, and there is now but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which is denominated a civil action (Const., Art. IY, sec. 1), and while new rules have been prescribed for determining the sufficiency of a pleading (The Code, sec. 231), one of which rules is that in the construction of a pleading for the purpose of determining its legal effect, its allegations shall be liberally construed with a view of substantial justice between the parties (Code, sec. 260), all this does piot mean that the Court shall supply necessary allegations, nor was it intended to repeal those rules of pleading so essential to producing certainty of statement and consequently a determinate issue between the parties, for The Code provides that the complaint shall, in actions in the Superior Court, contain “a plain and concise statement of the facts constituting a cause of action,” and in actions in justices’ courts it shall state in a “plain and direct manner,” the said facts, the latter being language no different in effect from that used in the ease of pleadings in the higher court, but of equivalent import. However we may consider it, the law requires in every court that the pleadings shall state the facts, and all the facts, which are necessary to constitute a good cause of action, plainly and concisely. I do not see that this varies substantially the rule of the common law, or, what was sometimes called, the rule of special pleading. The two systems are in this respect essentially the same.
The plaintiff sues in what is termed a “popular action,” not so called because such actions meet with popular favor or approval, but deriving its name solely from the peculiar fact *260that it can be brought by anybody who is willing to inform against the defendant and who is therefore denominated a common informer or prosecutor. Blackstone defines it as an action for a statutory penalty or forfeiture, given to any such person or persons as will sue for itan action given, in England, to any of the King’s subjects (3 Bl. Com., 151) and, in this country, to the people in general. The recovery may go to the informer, or if the action to gui tam, that is, one in which the plaintiff sues for the State as well as for himself, it is divided as the law may direct.
Having acquainted ourselves with the nature of the action and applying the foregoing principles to this case, let us see if the plaintiff has brought it within, the statute so as to become entitled, as a common informer, to the penalty he seeks to recover. I think he has not. Section Y54 applies only to cases where the account is for services rendered, and, even if a verified statement is required as to disbursements, it refers to such as have been made by the claimant. There are many kinds of accounts filed with the commissioners upon which claims for payment are based, and the glaring defect in the complaint is that it is not stated therein that the account alleged to have been audited without being itemized or verified was either for services or for disbursements. Mr. Laws may have had some other kind of claim against the-county, which is not included in the terms of the statute, but whether he had or not the law will not require the penalty of the defendant unless we can see clearly that he has violated its mandate. There is not even room enough in this complaint for a reasonable conjecture as to the truth of the matter. The defendant is not liable to the plaintiff, unless the board has failed to require an account for services to be itemized and verified or an account for disbursements to be itemized. This is according to the letter, and, as far as we can see, also according to the spirit and intent of the statute. The plaintiff has failed to *261allege that the account was for services or disbursements, if he can claim anything in respect to the latter for failure to verify. It follows that his complaint is defective in that “it does not set forth specially the facts upon which the plaintiff relies to constitute the offense, and it has not that certainty om its face as will enable the Court to see what has been omitted.” Nash, J., in Wright v. Wheeler, supra. For anything that appears in the complaint, the defendant may have done a perfectly lawful act. In this case the facts are surely not stated with any more certainty and precision than were the facts in the case last cited, and they were held to be insufficient to warrant a recovery for the penalty claimed.
It has been said in a case where a statute similar to ours was construed, and in which the plaintiff sought to recover a penalty, that “the main office of a complaint being to apprise the defendant of the facts upon which the plaintiff relies to establish a cause of action, The Code (of New York) requires that such facts shall he stated plainly and precisely; and inasmuch as this action is highly penal in its nature, there was special reason why in this particular instance the rules of pleading should not have been relaxed.” Steuben v. Wood, 24 App. Div. (N. Y.), 442. This language fits our case, even applying the liberal rules of pleading under The Code.
I have not adverted to the fact that the complaint charges that the defendant McKee individually failed to require an itemized and verified account, whereas the statute requires that duty of the hoard as a corporate body or distinct entity, and not of the individual members. The latter must act together as a unit. This is certainly not good pleading. Whether, the duty being single, its omission is therefore a single offense, for which only a single penalty can he exacted, is a question I need not consider at present, though it will be one well worthy of serious consideration when we are required *262to decide it. Tber.e are also other important questions involved which I need not now discuss.
The plaintiff was given an opportunity to amend his complaint, but preferred to stand upon his rights as fixed by the present state of the pleadings. The complaint being defective, I can see no error in the ruling of the Court by which the demurrer was sustained.