Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1900-05-01
WEED LAW
Supreme Court Holds that the Noxious
Weed Law is Not Opera
tive.
No Way for State to Collect the
Fine Provided BY the Leg
islature.

In the case Of the State VS.. Christian
Messner, appealed from the district
court Of Cass county, involving the
noxious weed law, the supreme court
holds that the law is imperative by
reason of a legislative lapse, the Iegis-
1ative assembly not having designated
for whose benefit the recovery OF the
penalty imposed by the law should be
had. The action Was brought by the
district attorney Of Cass county
against the defendant who was the
road overseer in Durbin township, for
the recovery of the penalty of $50 for
failure to destroy noxious weeds, as
specified in sections l6S3-16S6, Revised
Codes. The defendant, by his attor-
neys, Ball, Watson 4 McClay, demurred
to the complaint on two grounds, one
of which, the only one considered by
the supreme court, raised the question
OF b states capacity to sue. From
the order OF the district court overrul-
ing this demurrer the defendant APP
pealed and the supreme court reverses
the decision of the district court and
orders the entering Of an order sustain
ing the demurrer. The syllabus of
the decision is as follows:
AN action cannot be maintained in
the name of the state to recover the
penalty specified in section 1856, Re-
Yised Codes.
Penalties can only be recovered in.
civil actions in this state by the party.
for whose benefit the recovery can be
had"
The opinion in the case is written
by Chief Justice Bartholomew. In the
opinion, the portion of the law speci-
tying the penalty is cited but it is re-
marked that nothing is said as to the
disposition of the fine when it is re-
covered. 1t is not a fine or penalty
imposed as a punishment for crime and
therefore is recoverable in a civil ac-
ton under section 57S5, Revised Codes.
This provides how the action shall be
brought when the fine is payable to the.
state, to a corporation or individual,
or in part to either or both. But no
party is authorized to sue for such PEN
atty or any part thereof unless the re-
covery of the penalty is in whole or in
part for the benefit of such party. The
statute is restrictive. Nor is there
any general provision for the DISPOSE
tion of such penalties in the absence of
special provisions. If it were a fine
imposed as punishment for crime it
would go to the county treasury for the
benefit of the school fund. The stat
utes provide Lat fines must be paid
into the treasury entitled thereto but
in the law in question there is no speci-
1cation as to what treasury shall re-
ceive the money. The statute may not
be aided by presumptions, and if this
were possible there is no reason why
the presumption should be in favor of
the state. There are some general
provisions for the recovery of penalties
but they do no supersede special pro-
visions and they indicate the policy of
the state that no one shall use the
name OF the state as a party plaintiff
except in pursuance of some enabling
law.
1t is also stated that the state differs
from the individual in it's capacity and
authority to sue. The individual may
sue in whatever of action he
chooses however unsound it may be
but the state has no capacity to sue
for penalties except as authorized by
law, and then only through the person
authorized to bring the suit.
In closing the opinion the court says:
If 1t is true under our statutes-and
we think it is too clear for discussion
that the state has no capacity to sue
for penalties except as authorized by
law, then certainly the state cannot
maintain this action. True there is
no other party who can maintain it.
That is by reason of a legislative lapse.
If the legislature intends that penal
ties shall be recovered in a civil action
it must designate for whose benefit the
recovery can be had. Failing in that
the penalty cannot be recovered"