Miller v. State ( 1891 )

Campbell, C. J.,

delivered the opinion of the court.

The words, “ and each district attorney shall be allowed five per centum on all sums of money collected on judgments obtained by him on forfeited bonds or recognizances, the state in no case to be responsible for the same,” found in § 257 of the code of 1880, entitled that officer to the commissions specified on money collected on a particular class of obligations to the state, viz.: “forfeited bonds or recognizances” — that is, bonds or recognizances for the appearauce of parties before some officer or court in the various states of case provided for by divers statutes, in which the expression usually employed is “bond or recognizance,” so that the clause, “forfeited bonds or recognizances,” plainly had reference to this particular class of securities with which the district, attorneys had to deal in the performance of official duty.' This provision first became law by the code of 1871, § 215, and was designed to stimulate effort to collect forfeitures due on bonds or recognizances for appearance, which usually resulted in little more than judgment and execution with return of nulla bona, which terminated the effort to collect. The allowance is not on all sums of money collected in suits for indebtedness the district attorney is required to institute and prosecute, but it is on a specified class of obligations that he is entitled to a per centum; and, looking through the code, it is seen that the expression, “bond or recognizance,” is used to designate one particular class of liabilities incurred to the state. These are appearance bonds or recognizances, on which suits are not brought as ou ordinary bonds, but on failure of the party to appear the bond or recognizance is “forfeited,” and judgment nisi entered with sci,re facias, and judgment final.

The language quoted above is fitly chosen for the purpose, and is fully satisfied by the application we make of it, so as to allow district attorneys five per cent, on all sums of money collected on judgments they obtain on forfeited bonds or recognizances given for appearance in judicial proceedings of some kind, and to deny it in any other cases. One curious enough to investigate, as we have done, will discover that the expression, “ bond or recognizance,” in singular or plural form, is used sixty or seventy times in the code, and always as applied to the matters we have mentioned above as being the proper application, while in no iustance is the “bond” required of any officer, whether state, county, or district, spoken of by any other designation than as a “bond.” The terms, “bond or recognizance,” have thus acquired a fixed meaning from use in the statutes; and when it was declared that a per centum should be had, not on all money collected in suits prosecuted by district attorneys in the discharge of duty, but “on all sums of money collected on judgments obtained by him on forfeited bonds or recognizances,” it is plain that reference was had to the particular class of obligations indicated by the oft-repeated designation mentioned, and that official bonds were not embraced. As to them, suits are to be instituted and prosecuted as matter of official duty, without any special compensation.

This view disposes of the case; but we deem it proper to add that we agree with the chancellor in his view that the suit was rightly brought and prosecuted by the attorney-general, and that the assent or co-operation of the district attorney was not required.

Affirmed.