STATE v. ADDINGTON. allowance to the feme plaintiff of forty dollars, and the costs, and "in default of such payment the defendant was sentenced and committed to the house of correction, to-wit, the common jail of Buncombe County, for the term of six months, with authority to the County Commissioners to have him to do work on the public roads of the county, the sum of ten dollars per month to be allowed for his labor, which shall be paid into Court for the use of the feme plaintiff, and paid to her in satisfaction of the said allowance and the fine and costs." The defendant excepted to the judg ment and appealed. R. S. McCall for defendant. Assistant Attorney-General, Frank Carter and H. C. Chedester, contra. WALKER, J., after stating the case: This Court in two recent decisions has finally determined the nature of this proceeding. It has been adjudged to be civil and not criminal in its nature, and is intended merely for the enforcement of a police regulation. State v. Liles, 134 N. C., 735. It being in the nature of a civil proceeding, and the issue of paternity being tried according to the rules of evidence and procedure applicable to such a proceeding (State v. Edwards, 110 N. C., 511), a mere finding of the issue against the defendant, that is, that he is the father of the child, would not authorize the imposition of a fine, which is a pecuniary punishment for a criminal offense, or a contempt (which is quasi-criminal), imposed by the Court upon conviction. State v. Burton, 113 N. C., 655; 13 Am. and Eng. Enc. (2 Ed.), 53. It is true the word "fine" does not always mean a pecuniary punishment of an offense inflicted by a court in the exercise of criminal jurisdiction. It has other meanings, STATE v. ADDINGTON. and may include a forfeiture, or a penalty recoverable by civil action. People v. Nedrow, 122 Ill., 363; Hanscombe v. Russell, 11 Gray (77 Mass.), 373; Railroad Co. v. State, 22 Kan., 1; Black's Dict., p. 494; 13 Am. and Eng. Enc., supra. The true signification of the word when used in a statute must depend somewhat upon the context, and the meaning should be gathered from the intention, if the latter can fairly be ascertained from the language used. In ordinary legal phraseology, it is said, the term "fine" means a sum of money exacted of a person guilty of a misdemeanor, or a crime, the amount of which may be fixed by law or left in the discretion of the Court, while a penalty is a sum of money exacted by way of punishment for doing some act which is prohibited, or omitting to do something which is required to be done. Village of Lancaster v. Richardson, 4 Lansing (N. Y.), 136; 13 Am. and Eng. Enc., supra, and notes. While the words "fine" and "penalty" are often used interchangeably to designate the same thing, we think it will accord more with the true intention of the Legislature if we hold that in the Act of 1879, ch. 92 (Rev., sec. 259), the word "fine" was used in the sense of punishment for a criminal offense. In the first place, the amount is not fixed or certain, which is the general characteristic of a fine, but not of a penalty, the amount of the latter being certain, though the Legislature might perhaps impose a penalty of uncertain amount. Commissioners v. Harris, 52 N. C., 281; State v. Cainan, 94 N. C., 883; State v. Crenshaw, 94 N. C., 877; State v. Rice, 97 N. C., 421. In the second place, the statute requires that the defendant shall be committed in default of the payment of the fine, and lastly, this Court has so construed the statute in former decisions. State v. Burton, 113 N. C., 655; State v. Cagle, 114 N. C., 835; Myers v. Stafford, ibid., 231; State v. Wynne, 116 N. C., 981. This being so, the fine cannot be imposed in a proceeding which STATE v. ADDINGTON. is not criminal, and upon the verdict of a jury, where the issue submitted is tried like those in other civil cases. Otherwise the defendant would be subjected to conviction and punishment as for a criminal offense without the rights and advantages he would have in a trial upon indictment and the plea of not guilty. State v. Liles, 134 N. C., at p. 737. Whether this provision of the statute is void and of no effect for the reasons we have given, or whether the fine may be imposed upon conviction in an independent prosecution, we need not decide, as that question is not before us. State v. Liles, at p. 741. We only decide that the fine could not be exacted in this proceeding. Nor could the Court require the defendant to do work upon the public roads. The Revisal, sec. 262, authorizes him to be committed to the house of correction. Whether or not this provision is constitutional we need not say. There is no house of correction in Buncombe County, as appears by the judgment. The Court could only commit him to the jail until he performed its order. It has been held by us that the Legislature did not intend to punish an immoral or unlawful act, but merely to enforce obedience to the just requirement of the law, that the putative father should provide for the support of his offspring, and save the mother and the county harmless. State v. Brown, 46 N. C., 129; Ward v. Bell, 52 N. C., 79; State v. Edwards, 110 N. C., 511. This question is fully discussed in State v. Morgan, 141 N: C., 726, and the conclusion reached that this part of the judgment is unwarranted. Whether the defendant can take the insolvent debtor's oath is also a question that is not presented. The other objections of the defendant are untenable. The death of the child at its birth can make no difference as to the right of its mother to institute the proceeding. The statute expressly authorizes the mother to proceed against STATE v. ADDINGTON, the putative father before the child is born, that is, when it is en ventre sa mere. Revisal, sec. 253 and 254; State v. Crouse, 86 N. C., 617. The Court may continue the proceedings until the birth of the child. Sec. 258. This clearly implies that the proceeding may be commenced during pregnancy. State v. Wynne, 116 N. C., 981. The Judge was right in excluding from the judgment an order for a bond of indemnity, as the county, by reason of the fact that the child was dead when born, was not exposed to any charge for its support or maintenance. But the allowance to the mother was properly ordered. The statute simply requires that this allowance shall be made without directing how the money shall be spent. This leaves it discretionary with her as to how she will apply it. She was compelled to pay for medical attention and medicine for herself, and the burial expenses of the child, all consequent upon the defendant's unlawful act. Why should he not be made to reimburse her? It appears from the statute that this allowance could be made. before her delivery of the child, if there is no continuance of the trial and the proceeding is then prosecuted to judgment. It is intended to secure to her either probable expenses or to reimburse her actual outlay. This eliminates the fine and the alternative sentence of imprisonment in the house of correction with direction that the defendant be worked on the public roads. The allowance will stand, and the defendant may be imprisoned in the county jail until he pays it and the costs, or until he is otherwise discharged according to law. There was error in the judgment of the Court. STATE v. HICKS. STATE v. J. J. HICKS. (Filed May 27, 1907). Indictment-License to Practise Dentistry-LegislatureConstitutional Law-Burden of Proof-Evidence. 1. The Legislature has constitutional authority to regulate the practice of dentistry under Revisal, sec. 4468, forbidding any person to practise who has not graduated at a reputable dental school and received a certificate of proficiency or qualification from the Board of Dental Examiners, etc.; under section 4470, making the requirements inapplicable to any person who was a dental practitioner in this State before 7 March, 1879, if on or before 25 February, 1890, he should file a verified statement with the Board of Dental Examiners showing his name, residence, date of diploma or license, and date of commencing practise here; under section 3642, making it a misdemeanor to practise dentistry without first having passed the required examination and received the certificate. 2. While Revisal, secs. 4468, 4470, and 3642, are of a penal nature and strictly construed, they will receive a reasonable interpretation to discover their intent; the burden of proof is upon the defendant to show he came under the provision of Revisal, sec. 4470, and in the absence of evidence that he practised dentistry in the State before the specified time, or had filed the required statement, having admitted that he had not passed the requisite examination or received the certificate, a motion to quash the indictment is properly refused. 3. The defendant, under an indictment for practising dentistry without complying with the statute, is not excused because the desig nated officers had not furnished, as required of them, blanks upon which to make the statement under Revisal, sec. 4470, if he has not substantially complied with the provisions of the statute in making his statement without having the blanks. 4. Time for filing the statement to practise dentistry under sec. 4470, Revisal, is not of the essence of the enactment; by a present compliance therewith the defendant will be entitled to a certificate to be registered under Revisal, sec. 4468, and thus become lawfully qualified to continue the practise of his profession. THIS was a criminal action, tried before his Honor, Ward, J., and a jury, at March Term, 1907, of the Superior Court of CLEVELAND County. 143-44 |