Cushman v. Hale

• Decision Date: 28 July 1896
• Parties: CUSHMAN v. HALE, State Auditor.
• Court: Vermont Supreme Court

35 A. 382

68 Vt. 444

CUSHMAN

v. HALE, State Auditor.

Supreme Court of Vermont Chittenden.

July 28, 1896.

Exceptions from Chittenden county court. Petition by J. D. Cushman for a writ of mandamus to compel Franklin D. Hale, state auditor, to draw an order in favor of the petitioner for one-fourth of certain fines. Heard at the October term, 1895. Dismissed.

J. E. Cushman and R. E. Brown, for petitioner.

Bates & May, for petitionee.

ROSS, C. J. This is a petition to have the writ of mandamus issue, commanding the state auditor to draw an order in favor of the petitioner, on the state treasurer, for one-fourth of certain fines paid into the treasury of the state after December 1, 1894. The petitioner claims the right to a fourth part of these fines by virtue of Act 41 of the Acts of 1886, amended by Act 41 of the Acts of 1888. The amendment only made the provision of Act 41 of the Acts of 1886 applicable to one other section of the Revised Laws. Act 41 of the Laws of 1886 provides: "One-fourth of the fines and forfeitures mentioned in sections [naming the sections] shall go to the complainant, when complaint is made, otherwise to the prosecuting officer, and for each conviction of a subsequent offence in violation of sections [naming them] the officer prosecuting said cause to final judgment shall receive the sum of fifty dollars: and the state auditor is hereby directed to draw his order upon the state treasurer in favor of the prosecuting officer for said sum after the final determination of such prosecution and sentence of such offender." This act was repealed in 1894, the repeal to take effect December 1st of that year. Acts 1894, p. 132. In two of the prosecutions named in the petition, the petitioner was complainant, and in all prosecuting officer, being state's attorney at the time. The prosecutions were all commenced, and convictions were obtained in the lower court, before December 1, 1894, and the respondents were duly sentenced, but each appealed therefrom to the county court. The appeal did not vacate the conviction and sentence, unless it was entered in the county court; but such appeal, unless sooner waived, suspended the execution of the sentence until after the termination of the term of the county court to which the appeal was taken. If the appeal was entered, it vacated the conviction and sentence of the lower court. If not entered, the lower court could enforce the sentence after the appeal was waived, or after the termination of the county court to which the appeal had been taken. The terms of the county court to which the appeals were taken did not terminate until after December 1, 1894, when the repealing clause of the statute took effect, and when the petitioner ceased to be state's attorney, and ceased to be complaining and prosecuting officer. None of the appeals were entered in county court. One was waived, but not until after December 1, 1894. After the waiver, in the case in which the appeal was waived, and after the termination of the terms of the county court to which the appeals were taken, in the other cases, the court ha which the prosecutions were commenced, and the convictions had, enforced the convictions and sentences, and the fines imposed came into the state treasury. In case the fine and costs were not seasonably paid, the sentence was that the respondent should be confined at hard labor in the house of correction for three times as many days as there were dollars in such fine and costs. Hence, on December 1, 1894, when the repealing statute took effect, the convictions and sentences were not enforceable, were liable to be wholly vacated by entering the appeals, and were of such a nature that, if enforced, fines, as such, in money, might not come into the state treasury. For these reasons, and because the convictions and sentences became enforceable, and the fines were paid into the state treasury after the repealing statute took effect, the state auditor refused to draw his order on the state treasurer, in favor of the petitioner, for one-fourth of such fines. These fines were not recovered in the name of the petitioner, either as a public prosecutor, or a public suitor. They were recovered in the name of the state, and ordered to be paid to the state treasurer. Such were either the expressed or implied terms of the sentence. If first paid to some intermediate agent of the state, their legal destination was the state treasury, and not until they reached the state treasury did the state auditor have control over them. One-fourth of them was not a part of the salary or fees given to the petitioner as state's attorney. They came to him in that capacity, if at all, because, by virtue of his office, he was a complaining and prosecuting, officer,—one of many such officers under the law. It was given, in the first instance, to the complainant, whether a private person or a public officer; and, wanting such complainant, to the prosecuting officer. By the terms of the statute, such complainant or prosecuting officer was to receive nothing for his services in that behalf unless the prosecution resulted in a conviction and sentence, and payment of a fine or forfeiture. While given to encourage prosecutions of this class of offenses, as held in Wing v. Smilie, 63 Vt. 532, 22 Atl. 74, it was not intended to encourage the institution of unfounded prosecutions, and so wisely withheld an inducement for the commencement of such prosecutions, unless reasonably sure to result in conviction, and the payment of a fine or forfeiture into the treasury of the state. Public policy, rather than payment for services rendered, was the inducement which led to the passage of the law. State's attorneys, and all other public prosecuting officers, were under a duty to institute and pursue prosecutions for all known offenses of this kind, without this inducement. Having been enacted in the interest of the public, the law could be repealed whenever, in the judgment of the lawmaking power, public good required its repeal; and no right would be violated, except such as had become fixed under the law, while in existence. The contention is whether the petitioner had any fixed right to one-fourth of these fines.

1. The petitioner contends that the repealing clause of the act of 1894 should not be given a retrospective or retroactive effect because there is nothing in the repealing act which declares a legislative intention that it shall be given such effect This is a well recognized and established rule, applicable to all repealing and other statute laws which would operate injuriously upon established or vested rights. As announced in Briggs v. Hubbard, 19 Vt. 86, "Every law that takes away or impairs rights vested agreeably to existing laws, is retrospective." Or, as is defined negatively in the elaborately considered case of Rich v. Flanders, 39 N. H. 321: "Acts of the legislature are not to be considered as retrospective unless they impair rights that are vested, because most civil rights are derived from public laws; and if, before rights become vested in particular individuals, the convenience of the state produces amendments or repeal of these laws, those individuals have no cause to complain." Or as defined in the same case in the dissenting opinion of Bell, C. J.: "Every statute which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past, must be deemed retrospective in its operation." But on December 1, 1894, the petitioner had no vested right to one-fourth of what afterwards became fines paid into the treasury of the state. He could not have maintained any action for this fourth at that time. They had not then become fines. Whether they ever would was subject to several contingencies. If the respondents entered their appeals in the county court, all which the petitioner had caused to be done in the lower court in procuring conviction and sentence would be vacated. They had indicated their purpose to enter the appeals by taking them. Then the sentences were not absolutely for the payment of fines. It was at the election of the respondents to pay their respective fines, or to neglect to make such payment, and to submit to the alternative sentence at hard labor in the house of correction. In the latter case the fine, as a money fine, would never exist or become enforceable. These contingencies prevented the petitioner's right to one-fourth of these fines from becoming vested. U. S. v. Morris, 10 Wheat. 246. In this case, in 1813, a vessel and goods to the value of 822,361.75 had been seized in the harbor of Portland for violating the nonintercourse act, then in existence, by the collector and surveyor of the port, who, under the law, were entitled to a moiety realized from such seizures. The case had gone to a judgment of condemnation and forfeiture, and execution had been placed in the marshal's hands, commanding him to sell the property. At this juncture, a remission of the forfeiture, under existing law, bad been secured from the secretary of the treasury. The marshal refused to proceed under the execution. The suit was brought in the name of the United States, for the benefit of the collector and surveyor, for one-half of the value of the vessel and goods condemned and adjudged forfeited to the United States, against the marshal, for having delivered the property to the owner, and for refusing to sell enough of it to pay the moiety. The case was argued by Wheaton and Webster for the surveyor and collector, and by Emmet and Ogden for the owner of the vessel and goods, and evidently carefully considered. It was held that the collector and surveyor had no vested right to the forfeiture, and would have none until the money arising from the sale of the property condemned was paid to the collector of the port of Portland; that until then the right...