
    DUNHAM v. ANDERS.
    (Filed May 7, 1901.)
    CONSTITUTIONAL LAW — Tested, Right — Judgment of Justice of the Peace — Penalty—The Constitution, Art. XIV, Bee. 7 — The Code, Sec. 1870.
    
    A judgment of a Justice of the Peace for a penalty, though appealed from, is a vested right, and can not he divested hy legislative enactment.
    ActioN by. the State on relation' of J. R. Dunham against W. K. Anders, heard by Judge Frederick Moore and a jury, at Spring Term, 1901, of Bladen County Superior Court.
    This is an action originally brought before a Justice of the Peace to recover a penalty of two hundred dollars under the provisions of Article XIV, section 7, of the Constitution, and section 1870 of The Code. - The 3d paragraph of the complaint alleges: “That from the first Monday in July, 1897, up to and including tbe first Monday in April, 1898, tbe defendant exercised and performed tbe duties, powers and functions of both tbe officers aforesaid, to-wit, tbe office of County Commissioner of Bladen County and tbe office of member of the Board of Education for Bladen County.” On March 25, 1899, the plaintiff obtained judgment for tbe amount of tbe penalty, from which tbe defendant appealed to tbe Superior Court. Upon tbe trial in tbe Superior Court, tbe defendant introduced tbe following act of tbe General Assembly, ratified on the 2d day of March, 1901, which is as follows:
    AN Act fob the Relief of Cektain Citizens.
    Whereas, the Supreme Court of North Carolina decided in tbe case of Stale ex rel. Barnhill v. L. G. Thompson, at February Term, 1898, that tbe same person can not bold tbe office of County Commissioner and also be a member of tbe Board of Education; and, whereas, certain persons honestly believing that they bad tbe right to bold both positions, did bold the same, till the rendition of said decision, and thereby incurred the penalty prescribed in section 1870 of Tbe Code;
    
      The General Assembly of North Carolina do enact:
    
    Section 1. That all persons who- held tbe office of County Commissioner and tbe office of member of tbe Board of Education at tbe same time prior to and up to tbe 1st day of July, 1898, be and they are hereby relieved and shall not be held liable for tbe penalty prescribed in section 1870 of Tbe Code, or for any other penalty by reason of tbe bolding of the said two offices.
    Sec. 2. This act shall apply to suits now pending for the collection of said penalties: Provided, tha,t the Court in which such action is pending may order tbe costs in tbe action to be paid by either party in the event such action is dismissed by reason of the provisions of this act.
    Sec. 3. This act shall be in force from and after its ratification.
    Whereupon, the following issues were submitted to the jury and answered in manner and form following:
    issues.
    1. Did the defendant hold two offices, as alleged in the complaint ?
    Answer. Yes.
    3.Did the plaintiff obtain judgment against the defendant for the penalty sued for in this action on the 25th day of March, 1899, before J. M. Bryan, an acting Justice of the Peace for Bladen County?
    Answer. Yes.
    3. Did the defendant appeal from said judgment rendered by the Justice of the Peace, and is said appeal now pending ?
    Answer. Yes.
    4. Was said appeal pending on the 2d day of March, 1901 ?
    Answer. Yes.
    5. Did the plaintiff’s cause of action exist within twelve months prior to the commencement of this action ?
    Answer. Yes.
    Upon which verdict the plaintiff moves for judgment. Motion refused, and his Honor, Fred. Moore, Judge presiding, being of the opinion that the act of the General Assembly, ratified on the 2d day of March, 1901, and introduced in evidence by the defendant, destroyed the plaintiff’s cause of action and relieved the defendant of any penalty incurred by reason of Article 14, section 1, of the Constitution of North Carolina, and section 18J0, chapter 45, Volume I, of The Code of North Carolina, rendered judgment in favor of defendant.
    Erom a judgment for defendant, the plaintiff appealed.
    
      li. 8. White (and Lewis & Schulhen by brief), for tbe plaintiff.
    
      James H. Pou and G. G. Lyon, for the defendant.
   Doucüas, J.,

after stating the facts. The only point presented for our consideration is whether a plaintiff can by a Justice’s judgment, remaining unreversed, acquire such a vested right in the penalty as can not be taken from him by the Legislature.

Cooley in his work on Constitutional Limitations, says at page 443: “So, as before stated, a penalty given by statute may be taken, away by statute at any time before judgment is recovered.” But the same distinguished author says at page 443: “But a vested right of action is property in the same sense in which tangible things are property, and is equally protected against arbitrary interference.”

In the recent case of Dyer v. Ellington, 126 N. C., 941, this Court says on page 944: “An informer has no natural right to the penalty, but only such right as is given to him by the strict letter of the statute. It is not such a right as is intended to be protected by the act, but is one created by the act. He has in a certain sense an inchoate right when he brings his suit, that is, the bringing of the suit designates him as the man thereafter exclusively entitled to sue for that particular penalty; but he has no vested right to the penalty until judgment. Until it becomes vested, we think it can be destroyed by the Legislature. If the penalty had been reduced to judgment, or had been given to the injured party in the nature of liquidated damages, the case would be essentially different.”

In that case tbe act of remission was passed while tbe action was pending in tbe Justice’s Court, and before judgment. In tbe casé at bar, tbe act was passed after judgment in tbe Justice’s Court, and while tbe action was pending on appeal in tbe Superior Court. Upon tbe trial in the latter Court, all tbe issues involved 'in the case before tbe Magistrate were found for the plaintiff. It thus appears that no error was found in tbe Justice’s judgment, which neither was, nor could have been, reversed upon its original merits. It therefore stands in full force and effect, subject only to tbe plea in bar of tbe remitting statute, upon which alone tbe Judge below based bis judgment in favor of tbe defendant.

This brings us to tbe consideration of tbe nature of a judgment obtained before a Justice of tbe Peace, and tbe effect thereon of an appeal to tbe Superior Court. If such a judgment is a final judgment, that is, a judgment finally disposing of tbe subject-matter of the action, subject only to reversal on appeal, and remains in full force and effect until such reversal, notwithstanding tbe mere fact of appeal, then, in our opinion, it becomes a vested right of property in tbe plaintiff that can not be divested except by a reversal on its original merits. In other words, the plaintiff can not be divested of his property therein by merely legislative action.

Of course if tbe plaintiff bad failed to recover before tbe Justice of tbe Peace, and bad himself appealed, be would have bad no vested right, as be would have had no judgment to which such a right could attach. He would have only a qualified right of action, exclusive as far as tbe particular penalty is concerned, but subject to loss by legislative interference. A judgment of a Justice of tbe Peace is a final judgment when it fully disposes of tbe subject-matter of tbe action, since, unless reversed on appeal, it finally determines tbe rights of tbe parties. An appeal to tbe Superior Court does not vacate tbe judgment, nor even suspend its operation.

Code, sec. 815. It is true tbe appellant may obtain a stay of execution of tbe judgment by giving an undertaking to secure tbe full amount of tbe judgment, together with all costs, as provided by sections 882, 883, 884 and 885 of Tbe Code; but tbe judgment otherwise remains in full force and effect, even retaining its lien on real estate when properly docketed, wbicb is one of tbe highest attributes of a judgment. While tbe trial on appeal in the Superior Court is de novo, yet tbe judgment appealed from remains in force until reversed or modified by a judgment of the Superior Court. Hiatt v. Simpson, 35 N. C., 72, 74; Whitehurst v. Transportation Co., 109 N. C., 342, 344. In Dysart v. Brandreth, 118 N. C., 968, 913, this Court says: “A Justice’s judgment, when duly docketed in tbe office of tbe Clerk of tbe Superior Court, becomes a judgment of tbe Superior Court "to all intents and purposes” — citing Cannon v. Parker, 81 N. C., 320; Adams v. Guy, 106 N. C., 275; “and it becomes a lien on all tbe real estate of tbe defendant in the county where it is docketed, wbicb continues for ten years from tbe date of docketing”— citing Cannon v. Parker, supra; Murchison v. Williams, 71 N. C., 135. “Tbe fact that defendant appealed from tbe judgment of the Justice of tbe Peace, and gave security to stay execution, did not deprive tbe plaintiff of tbe right to have tbe judgment docketed, nor did it take away the hen of the judgment

Tbe defendant’s counsel cited some authorities in other jurisdictions to tbe effect that the legislative authority may, by repealing a law imposing a penalty pending an appeal from a judgment therefor, defeat tbe judgment; or, after judgment and before execution, defeat tbe execution. AH such cases appear to have been decided upon particular facts or principles not applicable to tbe case at bar; as for instance (a), tbe construction of local statutes; (b) where tbe national or State government itself prosecuted tbe action with only a contingent interest going to the informer; (c) where the effect of the appeal was to vacate or completely suspend the judgment.

That such is not the general effect of an appeal is shown by Black on Judgments, where the learned author says, in section 522: “The judgment of a Justice of the Peace or other inferior tribunal (in a case where jurisdiction of the parties and subject-matter appears from the face of the proceedings) so long as it remains unreversed, is, for every purpose, as binding and conclusive between the parties as that of the highest court of record in the State.” Ereeman on Judgments says, in section 524: “Where a court of special jurisdiction, having authority to decide the matter in controversy, acquires jurisdiction over the parties to the suit, its judgment is final and conclusive unless reversed by some appellate court.”

The case at bar is the counterpart of Dyer v. Ellington, supra, inasmuch as the act pleaded in bar was passed after judgment was rendered in the Justice’s Court. We are, therefore, of opinion that when the plaintiff obtained judgment for the penalty before the Justice of the Peace, he acquired a vested right of property that could be divested only by judicial, and not by legislative, proceedings.

On the issues found in the Superior Court, judgment should have been rendered for the plaintiff, and its judgment is therefore

Reversed.  