O'Kelly v. Athens Manufacturing Co. , 36 Ga. 51 ( 1867 )

Harris, J.

The action “qui tarn ” was originally one given to the people at large, or rather the forfeitures and penalties prescribed by acts of Parliament were permitted to be sued for by any informer, the act, however, reserving a portion to the king, the poor, or some public use, and hence the name. A suit begun by the informer gave him an exclusive right, and was therefore a bar to other suits. This led offenders to procure their friends to begin this “ popular ” action, in order to forestall or prevent other actions. This abuse of the suit producing so much collusion, caused the enactment of 4th Henry 7th ch. 20. After this enactment, suits to recover penalties and forfeitures were brought most usually in the name of the king, upon the relation of the informer, and not otherwise, unless by statutory provision.

Such we believe to be a condensed statement of the law as it existed in England up to 14th of May, 1776.

But even if precedents might be found in England previous to 1776, in which the informer sued in his own name, they would not be obligatory on this Court, since we have a distinct statutory provision in our Code, section 3178, which prescribes that in penal actions allowed in pursuance of public justice under particular laws, if no special officer is authorized by such particular laws to be the plaintiff therein, the State, or the Governor, or the Attorney or Solicitor General may be the plaintiff. This certainly confines the right of being plaintiff in such suits to the persons enumerated, or the section is unmeaning and would be worthless. The suit here was instituted since this enactment. Neither the pleadings nor testimony show O’Kelly to be such officer, or to be authorized by the act which imposed the forfeiture sued for, to be the plaintiff in the suit.

Having by the institution in his own name of an unauthorized suit acquired no legal right to 'maintain or prosecute it, the motion made by him to allow the writ to be amended, by substituting the State or Solicitor General as plaintiff, was properly denied. Possessing no right to sue as he did, the argument which was pressed with so much earnestness and ingenuity on our attention, that the Legislature could not, by the act of the 5th March, 1866, Pamphlet p. 6, remit or release the penalties incurred by the act of 9th December, 1862, after suit had been brought by the informer, as it would divest a vested right in violation of our State Constitution, is deprived of all its force. Had the suit been in the name of the State or Governor, on his relation as informer, the question then as to the extent of legislative capacity to release the interest so acquired by him, would have demanded of us an interpretation of that clause of the Constitution of 1865 prohibiting the Legislature from passing any retroactive act injuriously affecting any right of the citizen. We forbear expressing any opinion on this question, as such expression is entirely unnecessary'to the disposition of the case in the record.

Judgment affirmed.