CHARLESTON.

#### West *et al. v.*Rawson, Justice of the Peace, *et al.*

Submitted January 28, 1895

Decided April 6, 1895.

1. Grist Minn — Toll—Justice or the Peace.

The five dollars’ forfeit prescribed by law (section 37, chapter 44, Code) to be paid by the proprietor of a grist-mill to his customer for ¡taking more toll than allowed ¡oy the statute may be recovered in a civil proceeding before a justice of the peace.

2. Justice of the Peace - Jurisdiction — Writ of Prohibition

Where such justice has jurisdiction of the subject-matter in controversy, and does not exceed his legitimate powers, a writ of prohibition should’ not be granted.

P. A. BROWN for plaintiffs in error,

cited Codé, c. 44, s. 37; Id. c. 36, ss. 3, .4, 5, 6; Id. c. 50, ss. 219-230; Code 1819, vol. 2, p. 58; Code 1849, c. 43; Code, c. 50, ss. 8, 9,10,11,12; Code 1849, c. 150, s. 1; Code 1860, c. 150, s. 1; Const. Art. Ill, s. 14.

Casto & Lockhart for defendant in error,

cited 21 W. Va. 134; Code, c. 44, s. 37; 6 G-ratt. 481; Code, c. 36, ss. 1, 2. 3, 4, 5; 3 Rob. (New) Pr. 382-3; 18 S. E. Rep. 280; Code 1819, vol. 2, p. 228-9.

IIolt, PRESIDENT:

Upon a writ of error to the judgment of the Circuit Court of Wirt county rendered on the 21st day of June, 1894, refusing to award plaintiffs in error (defendants befare justice below) a writ of prohibition. . .

The plaintiffs in error, O. West and others, are the owners of a grist-mill in the county of Wirt. John Lockhart, one of the defendants, took grain to the mill, to be ground *481ior tbe consumption of bimself and family. He complained that tbe proprietors of tbe mill took for toll more than tbe statute allows, and accordingly brought suit before W. J. Bawson, a justice of tbe peace, against West and others, to recover five dollars, the sum which tbe statute declares tbe proprietor of tbe mill shall forfeit to tbe party injured fox-such violation.

Such proceedings were bad before tbe justice that tbe ■cause was ready and about to be tried when defendant West applied for and obtained from tbe Circuit Judge, in vacation, a rule against W. J. Bawson, tbe justice, and Jqhn Lockhart, tbe plaintiff, to appear at a time and place designated, after being served with a copy of tbe order, and show cause, if any they could, why a writ of prohibition should not be awarded commanding Bawson, tbe justice, and Lock-hart, tbe plaintiff, to cease from further proceeding in said action then pending before tbe justice. On tbe 27th day of March, 1894, tbe plaintiffs,'O. West and others, appeared in court, and on their motion tbe rule having been served, their motion for writ of prohibition was docketed. On tbe 6th day of April, defendant Lockhart tendered bis answer ■to tbe rule, and tbe same was ordered to be filed. On tbe 21st day of June, West and others moved tbe court to strike out the answer, but tbe court overruled tbe motion; and tbe cause then coming on to be beard upon tbe pleadings and evidence, including tbe transcript of tbe record of tbe proceedings pending before tbe justice and argument of counsel, tbe court was of opinion that plaintiffs, West and others, did not show themselves entitled to tbe writ, and gave judgment that tbe same should not issue, dismissing tbe rule, with costs.

Tbe only question of importance turns upon tbe meaning and application, with reference to tbe jurisdiction of a justice, of section 37 of chapter 44 of tbe Code (Ed. 1891, p. 358) which reads as.follows:

> “Sec. 37. At every mill which grinds grain, whether tbe •same be established under an order of tbe court or not, there shall be well and sufficiently ground, all grain brought to the mill for tbe consumption, when ground, of tbe person *482bringing- or sending it, oi liis family, and in due turn as the same is brought, and within a reasonable time thereafter; and there shall not be taken for the toll more than one eighth part of any grain of which the remaining part is ground into meal, nor more than one sixteenth part of any grain of which the remaining part is ground into hominy or malt. If at any mill there be a violation of this section in any respect, the proprietor thereof shall, for every such violation, forfeit to the party injured five dollars; but with these provisos, that the proprietor shall not be obliged to run more than one pair of stones to grind grain brought to the mill for consumption of the persons bringing or sending it, or their families, and that such proprietor may grind grain for the consumption of his family in preference to that of others.”

This statute, in its main features, has a long history, going back to the acts of 1748 (see 6 Hen. St. pp. 58, 59) and has been kept up in every revisal of statutes from that time to this. I have not beeen able to find any case where this section has called for construction, but it was the practice to' bring actions of debt in such cases under the Code of 1849, and I can discover no material change. Wee Code 1849 (Ed. 1860, p. 370) c. 63, s. 12. If the statute prohibits the doing a thing under a penalty, and does not prescribe any mode of recovery, an action of debt may be maintained. Com. Dig. “Action upon Statute,” F; 2 Bac. Abr. “Debt” A; *Sims*v. *Alderson (1836) 8*Leigh 479. Here no mode is prescribed. By section 28 of article YTII of the Constitution the civil jurisdiction of a justice of a peace extends to actions of *assumpsit,*debt, detinue and trover, if the amount does not exceed three hundred dollars; that is, all causes of action for which these might be brought; and, under power conferred on the legislature by the same section, it has, in chapter 50 of the Code, made this civil jurisdiction still broader.

The plaintiffs in error contend that the five dollars prescribed by the statute, as the forfeit to be paid by 'the proprietor of the grist-mill to his customer for taking more toll than what is allowed by law, *vis.*one-eighth, can not be recovered before a justice in a civil proceeding; that it only *483can be recovered either by presentment or indictment in thé Circuit Court, or by criminal warrant and arrest beíore a justice; that a justice has no jurisdiction of the subject-matter at all, or, if jurisdiction, it is only on a criminal warrant, and not by any civil proceeding, and therefore the Circuit Court erred in refusing a writ of prohibition.

We do not think, however, that they made good the contention. Chapter 36 of the Code (the one in part relied on) relates to the mode of recovering fines. It provides that the term “fine” shall include every pecuniary penalty or forfeiture, and that it shall be to the state for the support of free schools, Tinless it is otherwise expressly provided, or would be manifestly inconsistent.with the intention of the legislature. Here, as we have seen, it is otherwise expressly provided, for section 37 of chapter 44 says in so many words that the forfeit of five dollars shall go to the party injured; and Mayo, in his Guide (page 673) gives a civil warrant as the form for its recovery. In certain cases the informer or prosecutor is entitled to have a part of the fine, and no more. See Code, c. 36, s. 12. Here the whole goes unconditionally to the injured party, and, in no event or contingency does any part go to the state. Then, why should the state sue or prosecute for a penalty in which in no contingency it has any interest? And, as no costs can be recovered against the state, the mill owners would think it a great hardship, and quite a one-sided affair, that any customer could sue them with impunity without any risk as to the payment of costs on failure to make out a case; yet the mill owner must pay and pay always, to some extent, whether he gains or loses.

We are of opinion that the justice of the peace does have,, by civil action, jurisdiction of such cases; and in this case Justice Eawson was in no particular exceeding his legitimate powers; and that the judgment of the Circuit Court in refusing the writ of prohibition was right. Judgment affirmed.