McCall v. Webb.

Walker, J.,

after stating the case. The question in this case is whether the plaintiff should have recovered his damages for the loss of the fees and emoluments of the office in the action in the nature of quo warranto in which his right to the office of Solicitor was established, or whether he can maintain a separate action, such as this one is, and recover his damages therein. If he could only have his damages assessed by reference or inquiry in the first suit, it would seem perfectly clear that the judgment in that suit operates as res judicata and is a complete bar to his right of recovery in this case, as he permitted a final judgment to be entered in that action without having his damages assessed. Whether the remedy to have the damages assessed in the first action was exclusive of all other remedies and prevented the bringing of a separate action, as this is, for their recovery, depends upon the construction of our statutes upon the subject, because it cannot be contended with any hope of success that the Legislature did not have the power to provide that the plaintiff’s damages should be assessed and recovered in the action brought to try the title to the office.

The right to a particular remedy is not a vested one, and while the Legislature cannot deprive a party of all remedy, the State has complete control over the remedies which it offers to suitors in its courts and may limit the resort to remedies. It may abolish old remedies and substitute new, or, even without substituting any, if a reasonable remedy still remains. Cooley Const. Lim. (7 Ed.), page 515, et seq. It was so held in Parker v. Shannonhouse, 61 N. C., 209, in regard to the repeal of the statute giving the remedy by scire facias (13 Edw. I., chapter 15, Rev. Code, chapter 31, section 109) to revive a dormant judgment, because the plaintiff still had the common law remedy by action upon the judgment. It has been held that laws changing remedies for the enforcement of legal contracts, or abolishing one remedy when two or more existed, may be perfectly valid, even though the new or the remaining remedy be less convenient than that which was abolished, or less prompt and speedy. Cooley, supra, 406. So that the power resided in the Legislature to repeal the remedy by separate action for the recovery of damages from him who has been adjudged to have wrongfully intruded into an office and received the fees and emoluments thereof.

The_ functions of a court in respect to statutes are, first, to decide upon their constitutionality or validity, and second, to ascertain and declare their meaning.

Having decided as to the extent of the power and authority of the Legislature with respect to remedies, we will next consider what remedy it has given for the recovery of damages such as those claimed in this case.

It was provided by The Code, section 613, that in actions to recover the possession of an office “if judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation of the defendant of the office from which such defendant has been excluded.” It was held under this section that compensation in damages for the loss of the fees and emoluments of the office could be recovered from the intruder who had received the same, in an action brought after the rendition of the judgment for money had and received to the relator’s use. Swain v. McRae, 80 N. C., 111; Jones v. Jones, 80 N. C., 121; Howerton v. Tate, 70 N. C., 161. Section 616 of The Code, providing for expediting the hearing of cases brought to try the title to offices, was amended by the Act of 1895, chapter 105, section 1, by inserting the following:

“The defendant, before he is permitted to answer or demur to the complaint, shall execute and file in the Superior Court Clerk’s office of the county wherein the suit is pending an undertaking, with good and sufficient surety, in the sum of $200, which may be increased from time to time in the discretion of the Judge, to be void upon condition that the defendant shall pay to the plaintiff all snob costs and damages., including damages for the loss of such fees and emoluments as may or ought to come in the hands of the defendant as the plaintiff may recover in the action.” And section 1 of chapter 105 of the Act of 1895 was itself amended by the’Act of 1899, chapter 49, by adding thereto the following:

“At any time after a duly verified complaint is filed alleging facts sufficient to entitle the plaintiff to the office, whether such complaint is filed at the beginning of the action or later, the plaintiff may, upon ten days’ notice to the defendant or his attorney of record, move before the resident Judge or the Judge riding the district, at chambers, to require the defendant to give such undertaking, and it shall be the duty of the Judge to require the defendant to give such undertaking within ten days; and if the undertaking shall not be so given, the Judge shall render judgment in favor of the plaintiff and against the defendant for the recovery of the office and the costs, and judgment by default and inquiry to be executed at term for damages, including loss of fees and salary. Upon the filing of said judgment for the recovery of such office with the Clerk, it shall be the duty of the Clerk to issue and the Sheriff to serve the necessary process to put the plaintiff into possession of the office. In case the defendant shall give the undertaking, the Court, if judgment 'is rendered for the plaintiff, shall render judgment against the defendant and his sureties for costs and damages, including loss of fees and salary.”

It will be observed that by the Act of 1895 the defendant is required to give an undertaking to secure to the plaintiff all costs and damages, including such fees and emoluments as may or ought to come into his hands and which the plaintiff may recover in the action. This language is perfectly clear and explicit, and leaves no room for doubt as to what is meant. If it is not expressed in so many words, it is plainly implied tljat the plaintiff must recover bis -damages in the pending action fox the recovery of his office, for the essential condition of the undertaking is “that the defendant shall pay all such costs and damages as the plaintiff may recover in the action,” and these damages are secured by the undertaking, and if they are not paid by the defendant the sureties become liable for them. How can a plaintiff recover damages in an action unless they are assessed in that action. The expression “such costs and damages as the plaintiff may recover in the action” mean necessarily and ex vi termini that there must be a recovery of them in that action or not at all. The damages are to be recovered just as the costs, for they are associated together and put in the same eatagorv.

But if there were any uncertainty as to the meaning of that statute, all doubt would be removed by the Act of 1899, for it provides that “If the undertaking shall not be so given, the Judge shall render judgment in favor of the plaintiff, and against the defendant for the recovery of the office and the costs, and judgment by default and inquiry, to be executed at term for damages, including loss of fees and salary.” And again: “In case the defendant shall give the undertaking, the court, if judgment is rendered for the plaintiff, shall render judgment against the defendant and his sureties for costs and damages, including loss of fees and salary.” (Italics ours). A judgment by default and inquiry is taken always against the defendant and not against his sureties. They cannot be said to have defaulted, nor are the damages assessed against them but against the defendant, and they become liable for the amount so assessed to the extent of the penalty of their bond. But the second branch of the Act of 1899 is still more to the point and excludes any and all doubt as to what was meant. It is therein expressly provided that if the undertaking is given and the plaintiff recover, judgment shall be rendered against the defendant (and of course his sureties) for costs and damages. This is a positive and unequivocal direction that judgment for any damages sustained by the plaintiff shall be rendered, if at all, in the action brought to try the title to the office.

These amendments in regard to the method of recovering damages in such cases do not provide for a cumulative remedy, but it was intended by them to substitute the remedy by inquiry in the action brought to recover the office for the former remedy by separate action on the undertaking, which was given by section 613 of The Code; and, besides, the amendments are inconsistent with the provisions of section 613, and the latter is therefore repealed by them. The amendments provide not only a sufficient and adequate remedy for the assessment of the plaintiff’s damages, but one that is more expeditious and less expensive than a civil action. We do not think there is anything in the peculiar nature of the suit, nor in the fact that it is brought in the name of the State, that renders the mode of procedure prescribed by the amendments incompatible with the object or purpose of the suit. It is now an ordinary civil action prosecuted, it is true, in the name of the State, but in fact for the use and benefit of the relator, who is the real party in interest, or at least one of the real parties in interest, and he can assert all of his rights in the action. So far as the action affects his rights it is private in its nature. There is no constitutional objection to the amendments of 1895 and 1899 upon the ground that the action is prosecuted.in the name of the State to assert the right of one of its citizens to a public ■office.

Having sustained the validity of the Acts of 1895 and 1899, and having shown from the wording of the acts that they require the damages to be assessed in the original action, we will now refer to some of the authorities upon the latter question. In Gold Co. v. Ore Co., 19 N. C., 48, the Court, construing section 192 of The Code of Civil Procedure (now section 341 of The' Code), which required the damages to be ascertained by reference or otherwise, as the Judge shall direct, held that it was not contemplated that a separate action should be brought on the injunction bond, but that the damages should be assessed in the action in which the bond was given. To the same effect is Crawford v. Pearson, 116 N. C., 718, in which it is said the fact “that the defendant was sued alone in this action, and not his sureties on the injunction bond with him, makes no difference. The undertaking does not impose any new liability on the defendant but simply provides an additional security, therefore the damage which the plaintiff suffered, if any, should have been assessed in the same manner as if the sureties on the undertaking had been moved against, i. e., in the same action in which the injunction was issued.” In Railroad v. Mining Co., 117 N. C., 191, it is held, approving the cases just cited, that when there is a final judgment against the plaintiff in the action, the defendant must “then and there lodge a motion for the assessment of their damages or else lose their remedy.” But when there is an appeal, the motion must be entered not at or before the time of the appeal, but when, after the judgment of the appellate court is certified to the lower Court, the latter is about to enter the final judgment and before it is entered, otherwise the right to damages will be lost as in the other case, where there was no appeal.

It is contended that the cases of McCall v. Webb, 126 N. C., 760, and McCall v. Zachary, 131 N. C., 466, settle the principle that a separate action for the damages in cases like this may be brought and that it is the only proper remedy. We have read and carefully considered those cases, and, so far as they do so decide, we do not think that they can be sustained. It is manifest that tbe Court overlooked the Acts of 1895 and 1899, which perhaps were not called to its attention. No reference to them is made by the Court, and in the discussion of the cases the argument of the Court proceeded altogether upon the idea that the action in the nature of quo warranto is of a public nature, which we think is erroneous. If such an action is instituted by the State alone, or by the State on the relation of a citizen, to inquire into the right of another to hold a public office, the action might be said to be of a public nature, but not so where one citizen sues another for the recovery of an office, although he uses the name of the State for the purpose. The distinction is clearly drawn in High on Ext. Leg. Rem., sections 629, 631 and 682, .and is also recognized in The Code, sections 607, 608, 609, 610 and 613. But the suggestion is sufficiently answered by the fact that the Acts of '1895 and 1899 have distinctly provided that the damages shall be assessed in the original action, and it was clearly within the power of the Legislature so to provide.

In McCall v. Webb, 126 N. C., 760, it was held that the plaintiffs motions to amend the judgment and to amend the complaint were properly refused because, as they were made after the certificate of this Court had been sent to the Court below, that Court could not change or modify the judgment of this Court, and Pearson v. Carr, 97 N. C., 194, and several other cases, were cited in support of the ruling. The principle stated is undoubtedly a correct one, but we do not think it had any application to that case. Those cases apply only when the action of the Court below would introduce a new cause of action or new facts and thereby unsettle the decision and final judgment of the óourt, and not to cases in which an order is made for the purpose only of carrying the judgment into effect. If Judge McNeill had granted the motions, he would not have changed or modified in the least tbe former decision of tbe Superior Court or tbe decision of this Court. Tbe judgment declaring McCall to be entitled to tbe office of Solicitor would have remained unimpaired. Perhaps tbe proper course to pursue is to move for an inquiry at tbe time tbe judgment is first entered, and then, if there is an appeal and tbe judgment is affirmed, tbe inquiry can be executed when tbe case goes back to tbe Superior Court, but if it is reversed, tbe order for an inquiry, being a part of tbe judgment, will be set aside with it. We do not mean by this to say that tbe motion for an inquiry cannot be made after tbe judgment of this Court is certified to tbe Superior Court. It may be that either course is open to tbe plaintiff. The ruling in McCall v. Webb, 126 N. C., 760, seems to be inconsistent with tbe decision in Railroad v. Mining Co., 117 N. C., 191, which we bave already cited and commented upon. In view of tbe plain and explicit provision of tbe statute as contained in tbe Acts of 1895 and 1899, we are unable to follow McCall v. Webb, 126 N. C., 760, and McCall v. Zachary, 131 N. C., 466, upon tbe question involved in this action. If tbe plaintiff was erroneously denied relief in McCall v. Webb, supra, be should bave filed a petition to rehear, and if tbe decision was right be loses because be made bis motions in tbe cause too late. In either case tbe judgment of tbe Superior Court in that action, which was affirmed by this Court, is a final determination of all matters which tbe law required to be litigated in it. Tbe judgment is conclusive not as to all matters which might bave been brought into it for litigation, but as to those which tbe law contemplates as actually involved in tbe case and presented for decision, and tbe cases must be thus understood. Glenn v. Wray, 126 N. C., 730; Williams v. Clouse, 91 N. C., 327; Wagon Co. v. Byrd, 119 N. C., 460. Tbe plaintiff is concluded by tbe judgment in tbe original action of McCall v. Webb as to all claim for damages, including the loss of fees and emoluments, upon the presumption of the law that they have either been waived by his not insisting on their recovery or that his right thereto has been adjudicated against. In no view of the matter can this action be maintained, as a party cannot resort to a new and independent action when relief can be had by proceeding in the original cause. Clark’s Code (3 Ed.), page 855, where the numerous cases are collected. This is especially so when the law prescribes what the remedy shall be and how it shall be enforced.

It must be certified to the Superior Court that there is error in its judgment, which must be set aside, and judgment entered upon the agreed statement of facts dismissing the action.

Reversed.