Gunn v. Mahaska Cnty.

• Decision Date: 07 June 1912
• Citation: 136 N.W. 929,155 Iowa 527
• Parties: GUNN v. MAHASKA COUNTY.
• Court: Iowa Supreme Court

155 Iowa 527

136 N.W. 929

GUNN

v.MAHASKA COUNTY.

Supreme Court of Iowa.

June 7, 1912.

Appeal from District Court, Mahaska County; K. E. Wilcockson, Judge.

Action to recover stipulated percentage of fines collected resulted in the dismissal of the petition. The plaintiff appeals. Affirmed.H. H. Sheriff and D. C. Waggoner, both of Oskaloosa, for appellant.

J. G. Patterson, of Oskaloosa, for appellee.

LADD, J.

The plaintiff addressed the following proposition to the board of supervisors of Mahaska county: “I agree to collect the fines and costs due the county in the justice and mayor's courts and the district courts in and for Mahaska county, and agree to accept in full compensation 33 1/3 per cent. of the amount paid in to the county treasurer of said fines and costs. This agreement to be in full force and effect for the period of two years from its acceptance.” Acceptance was indorsed thereon, each member signing same, in February, 1910, and it was filed with the county auditor together with a bond duly approved conditioned for the accounting of any moneys collected. The plaintiff, not being an attorney, engaged counsel to assist him as occasion might require, and shortly thereafter ascertained that one Josephine Wilson against whom fines for contempt of court had been denounced in 1902 and 1903 amounting to $1,500 had since then through inheritance from her mother and a quitclaim deed from another heir become owner of certain real estate on which these fines had become liens. Sections 2422, 5531, Code. After some parley, executions were issued and levied thereon when the several fines, with interest, were paid to the sheriff, and returned by him to the clerk of court, who, in due time, turned the same to the county treasury. Recovery of 33 1/3 per centum thereof was demanded by plaintiff and denied by the district court.

[1] Counsel for defendant contends that no part of fines so collected may be thus diverted from the school fund by the board of supervisors, and rely on section 4 of part 2 of article 9 of the Constitution, which declares that “the clear proceeds of all fines collected in the several counties for any breach of the penal laws shall be exclusively applied in the several counties in which such * * * fine is * * * collected among the several school districts of said counties, in proportion to the number of youths subject to enumeration in such districts, to the support of the common schools, or the establishment of libraries, as the board of education shall from time to time provide.” Precisely what is meant by “the clear proceeds of all fines collected” has not been the subject of judicial construction in this state. In Woodward v. Gregg, 3 G. Greene, 287, the prosecuting attorney withheld from a fine collected by him the fee allowed by law for prosecuting the person fined, and this was held to be contrary to this provision of the Constitution. A like conclusion was reached in State v. Miles, 52 Wis. 488, 9 N. W. 403, where a county treasurer withheld the costs of prosecution from the fine collected which the law of that state under a similar constitutional provision required to be reported to the State Treasurer, the court saying: “The legal fees which the county treasurer may retain out of such money is 2 per cent. thereof. Section 719. No deduction for the benefit of the county can lawfully be made by the county treasurer from the fines paid to him, unless the same is authorized by law. It is for the Legislature to determine what deductions are to be made, and not the county treasurer, or the county board of supervisors. Even the power of the Legislature in this respect is limited, as appears from the cases of Lynch v. The Steamer Economy, 27 Wis. 69, and Dutton v. Fowler, 27 Wis. 427. To permit each board of supervisors to determine for itself, or each county treasurer for himself, what expenses shall be deducted from fines collected, would be to introduce inextricable confusion. Under such a system there would be no fixed, certain rule by which the ‘clear proceeds' of fines could be determined; or, what is very probable, there would be no such ‘clear proceeds' left for the school fund. The system would be unjust and intolerable, and its practical effect would be doubtless to dry up one of the sources which the Constitution has ordained to replenish and increase the school fund of the state. The Legislature has provided for no deduction from such fines except 2 per cent. thereof, which the treasurer may retain. Hence, under existing laws, the clear proceeds of fines received by the county treasurer is 98 per cent. thereof, which must be paid into the state treasury for the benefit of the school fund.”

In People v. Treasurer of Wayne County, 8 Mich. 392, the court held that deductions of expenses for collecting the fines and prosecuting the offender might not be made therefrom, but the Constitution there provided that “all fines” be exclusively applied to the support of libraries. In Lynch v. The Steamer Economy, 27 Wis. 69, an act diverting one half the penalty imposed (the other half being given to the informer) to the use of the county was held inimical to a constitutional provision like that of this state, and in Dutton v. Fowler, 27 Wis. 427, a statute allowing the informer the entire penalty was held obnoxious to the constitutional provision, but in Katzenstein v. Railway, 84 N. C. 688, a distinction was drawn “between those penalties that accrue to the state and those that are given to the person aggrieved, or such as may sue for the same,” and it was held that the former only are contemplated in a like provision of the Constitution of that state, though the force of this conclusion is somewhat weakened by the references thereto in the several opinions of members of the same court in State v. Railway, 108 N. C. 24, 12 S. E. 1041. In State v. De Lano, 80 Wis. 259, 49 N. W. 809, a statute giving half of the fine to the informer was upheld; the court saying: “Really the question simply is, What is the meaning of the words ‘clear proceeds,’ as used in the Constitution? That it does not mean ‘entire’ proceeds is we think too clear for argument. ‘Clear’ implies that something is to be or may be deducted, so that the balance is ‘clear’ from all charges or demands. It seems to us that the word ‘clear’ is here used in the sense that it is frequently used colloquially when we speak of the ‘clear profit’ in a business transaction, meaning the ‘net profit’ after all expenses or losses are deducted. Obviously, if this is the meaning of the word in this connection, it was contemplated that there would be power resting somewhere to provide for and define what deductions from the gross fine could properly be made. If that power exists (and we hold that it does), it must rest in the Legislature, as said by Mr. Justice Lyon in State v. Miles, supra. This view of the intent of the framers of the Constitution in using the words ‘clear proceeds' is strengthened when we consider that the system of paying a moiety of fines in many penal actions to informers was in frequent use in England from very early times, and has been quite generally adopted in this county. Bac. Abr. tit. ‘Actions Qui Tam’; 3 Bl. Comm. 160 It is not unreasonable to suppose that the words ‘clear proceeds' were intended to provide for just this contingency, so that the Legislature might authorize a part to be paid to the informer for the purpose of securing a better enforcement of the law. It is quite evident that, if it is not made an object for some one to prosecute, many salutary laws would never be enforced, because no one would be interested in seeing them enforced.” See State v. Ry., 133 Ind. 69, 32 N. E. 817, 18 L. R. A. 502;Southern Express Co. v. Commonwealth, 92 Va. 59, 22 S. E. 809, 41 L. R. A. 436. As to fines under municipal ordinances, see Village of Platteville v. Bell, 43 Wis. 488. As to who may question validity of statute, see Pennsylvania Co. v. State, 142 Ind. 428, 41 N. E. 937; Ex parte McMahon, 26 Nev. 243, 66 Pac. 294.

Without saying that deductions from fines and forfeitures must in all circumstances be limited to those allowed the informer, we are of the opinion that these are never permissible, unless authorized by statute in procuring the assessment of fines, and the...