PROSECUTING ATTORNEY.

(Hamilton Circuit Court,

January Term, 1886.

Cox, Smith and Swing, JJ.

#### *State ex rel. Outcalt v. Jos. H. Brewster, Auditor.

Prosecuting Attorney Not Entitled to Commission on Costs.

Section 1298, of the Revised Statutes, does not entitle a prosecuting attorney to receive, from the county treasury, a commission of ten per cent, on the amount of costs received from the state, and paid into such treasury under the provisions of sections 7336 and 7337 of the Revised Statutes.

Mandamus.

*

The Supreme Court made a similar decision in State v. Brewster, 44 O. S., 249. The lat ter has teen cited, 51 O. S., 123, 127.

Smith, J.

The question submitted to us is, whether we ought now to issue a peremptory writ of mandamus requiring the defendant as auditor to issue his warrant on the county treasurer, in favor of the relator, (who was the prosecuting attorney of this county from Januarj^ 1, 1881, to January 1, 1883), for the sum of $939.73, being 10 per cent, on the sum of $9,397.35 which it is alleged was received by said county from the state of Ohio, during his official term as such, as costs in criminal cases, tried while he was in office, and in which cases the defendants had been convicted and sent to the penitentiary. A general demurrer has been filed to the petition, and the question is thus raised.

The claim of the relator is based on section 1298 of the Revised Statutes,, and the particular language on which it is founded first appeared therein. It reads as follows : “In addition to his salary,” (which is provided for in section 1297) “the prosecuting attorney is entitled to 10 per cent, on all moneys collected on fines, forfeited recognizances, and costs in criminal causes, provided that said commission shall not in any one case exceed $100.

And this and the preceding section are the revision of the statute passed March 17, 1873, vol. 70 O. L., 67, which, after fixing the salary of the officer, says : “Provided, tlfat the county commissioners shall allow prosecuting attorneys 10 per cent, on all money collected on fines, forfeited recognizances, and costs collected of defendants in criminal cases ; provided, further, that the sum to be paid to such prosecuting attorney as commission for collecting fines and forfeited recognizances shall not exceed $100 in any one case.”

It is admitted on all hands that under this statute of 1873, no claim of this character could properly have been made. It express^ provided that such commission, so far as costs in criminal cases were concerned, could only be allowed, when such costs were *“collected from the*defendantBut it is urged here, that under the statute, as it now stands, it is clear that such officer has a legal and valid claim to the commission on the costs in criminal cases, received by the county from the state — that it is a collection of costs in criminal cases, and practically by the prosecuting attorney ; and that there is no longer any limitation in the law that they must be collected of the defendant to entitle him to such commission, and consequently that there is *no*reason why the relator should not be entitled to receive the same from the county.

Is this claim wellfounded? There certainly can be no question but that it is a plausible one. The omission from the revising statute, of the words before referred to, to say the least of it, has the effect to make that doubtful which was before clear and explicit, and to render it uncertain whether the same meaning is to be given to the new statutes as to the old. If the change in this respect was made by the commissioners appointed to revise the statutes in force in the state, and was done in the exercise of the power conferred upon them by the law under *208which they were appointed, viz.: “to bring together all of the statutes, and parts of the statutes, relating to the same matter,” * * * “and to make alterations, supply omissions, and amend imperfections in the acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with clear expression of the will of the general as.-embly, rejecting all equivocal . and ambiguous words, and circuitous and tautological phraseology,” then it must be admitted that the change was not a happy one.

But the legislature adopted the sections as they now stand, and, it may well be, well knowing and intending the change ; and a construction must be placed upon it as it stands, looking at the language actually used, in the light cast upon it, if any, by the statute as it was before the revision, of the acts *in pari*materia, and of the decisions of the Supreme Court, as to the manner in which revising acts should be viewed by a court called on to construe and interpret them.

There has been no decision of our Supreme Court as to the meaning of the statute. If there had been, of course, it would have been unnecessary to raise the question here. In the argument of the case, however, counsel for the relator has stated to us, that several courts, whose judgments and adjudications are entitled to weight, and among others the district court of Licking county, have held that under the statute as it now stands, prosecuting attorneys are entitled to commissions in such cases. In the court of common pleas of Clermont county, as one of the members of this court has personal knowledge, a different conclusion was reached. How fully the matter was presented to these different courts, we do not know, or what reasons were given for any of these holdings.

But while we concede that the question is one not free from doubt and difficulty, and which, as involving the interests of all of the counties of the state, and concerning which there is a difference in practice, ought to be passed upon by the Supreme Court, as at present advised, we have not been able to arrive at the conclusion, that it was the intention.of the legislature, by this revision, to change the law so as to give to prosecuting attorneys a commission in such cases.

Our reasons for this, briefly stated, are these : In the first place we do not think that the reception of costs in this manner by the county irom the state, is such “a collection of costs in criminal cases,” as is contemplated bj^the statute. And it is not a collection *at all*by the prosecuting attorney, and we think in reason and fairness, it should be done by him, or through his instrumentality, to entitle him to commissions thereon. It is so in all the other cases mentioned in this connection; the statute gives him the ten per cent, on all moneys collected on fines, forfeited recognizances and costs in criminal cases.” So far as fines and costs are concerned, section 1273 provides, “that in every case of conviction, he (the prosecuting attorney) shall forthwith cause execution to be issued for the fines and costs, or costs only, as the case may be, and faithfully urge the collection, until it is effected, or found to be impracticable; and he shall forthwith pay over to the county treasurer all moneys belonging to the state or county, which come into his'possession for forfeitures, costs or otherwise.”

Here an absolute duty is imposed upon him. He is to put into operation the process of the law. If anything is collected, he it is who is to receive the money from the sheriff, or the defendant, and pay it to the treasurer, and it is for these services he is to be compensated by the commission thereon.

So as to the other collection mentioned, viz.: on forfeited recognizances. The same section, 1278, requires him to bring and prosecute on behalf of the state, all suits in which the state is a party, and section 7183, expressly requires this to be done to collect forfeited recognizances — and for this too, he is to be compensated by the commission.

But when we come to the regulation of the mode and manner in which, in certain cases, the state refunds money advanced by -the county in the payment of costs, he has absolutely nothing to do with it. He renders no service — he has no voice in the matter, and the money so refunded does not pass through his hands. It is paid by the sheriff or auditor of state, directly to the clerk (sections *2097336-7). If in all the other cases where the commission is allowed, the object seems to be to compensate the officer for services rendered, on the doctrine of the maxim *"nocitur*sociis,” we would conclude that the same was the case in this instance, and that the legislature did not intend to adopt a different rule as to one, and to provide for payment to an officer who had rendered no service in its collection. And the idea that it was the object of this provision, to make the prosecuting attorney zealous in the discharge of the duties of his office, and to procure a conviction for a felony in a case where the defendant, if convicted of a misdemeanor only, could not, on account of his insolvency, pay the costs, ought not to be entertained for a moment. It is not at all probable that the legislature would offer such an inducement to an officer, whose duty it is to protect the rights of the citizen as well as those of the state. We have never had such a policy in our state, and it would be a step, and a long one, I think, in the wrong direction.

2. But we are further of the opinion that the reception of costs by the county from the state, under such circumstances, is not a collection of them, in the meaning of the statute. The prosecuting attorney is the representative of the state in the prosecution of crimes and offenses; and at the same time he acts in the interest of the county in which he is elected. So far as the prosecution of offenses is concerned, the interests óf the two are, and should be identical. The state in the exercise of its sovereign power has seen proper to provide that in some cases the costs should be paid by the county without any return, unless they can be collected of the defendant. In others, it provides that the county shall advance them to the parties interested, but assumes to return to it the amount thus expended, if it cannot be collected of the defendant. Now, if a claim is committed to an attorney for collection, and he recovers a judgment for his client, for the amount of the debt and costs incurred, but cannot collect either from the defendant, the payment of these costs by the plaintiff would hardly be considered a collection of them. The idea of a collection is the obtaining of the money cue from the antagonist, and not from the client. It is true that in the matter now under consideration, the money received from the state for costs, comes into a treasury, distinct from that of the state, viz., of the county, a separate political organization, to carry on the business of the people residing therein, and thus puts that treasury in a better financial shape than it otherwise would have been, but this does not, under all the circumstances of the case, seem to us to be a sufficient reason for calling this a collection.

3. But looking at this statute itself as a revision of a former law, there is much reason to suppose, that the same construction should be placed upon it that would have been given to the original act. The general rule on this subject is well stated by Judge Okey, (himself a member of the commission which revised pur statutes) in the decision of the case of Allen v. Russell, 39 O. S., 336. He says : “Where one or more *sections*of a statute are repealed, and reenacted in a different form, the fair influence is, in general, that a change in meaning was intended, though even in *such*a case, the intention may have been to correct a mistake or remove an obscurity in the original act, without changing its meaning. But when *all the genera! statutes*of the state, *or ad on a particular subject*are revised and consolidated, there is a *strong presumption*that the same construction which the statutes received, *or*if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed,” and to these propositions he cites quite a number of Ohio cases — but he adds: “Of course, if it is clear from the words, that a change in substance was intended, the statute must be enforced in its changed form.”

In the revision of this statute there was an evident attempt to comply with the law, and to bring together all the statutes relating to the prosecuting attornejq his duties and his fees, and presumably to discharge all of the other duties *210imposed by the law on the commissioners.

C. Bently Matthews, for the relator.

Rufus B. Smith, county solicitor, for auditor.

While the phraseology of the new statute differs in some particulars from that of 1873 thus revised, and there is some transportation of sentences, it is evident, we think, that the *general*meaning of the two is the same. In both it is provided that the prosecuting attorney be paid a salary — in certain counties a fixed sum, and in the others a sum to be regulated by the number of inhabitants, as shown by the last preceding federal census, and these provisions are in substance the same in both acts. In addition thereto, both provided for a commission to the officer of 10 per cent, on all moneys collected on fines, forfeited recognizances and costs in criminal cases. The only differences between the two are, 1st, the omission of the word before referred to (“of the defendant”), 2d, extending the provision that the commission in any one case shall not exceed $>100 to costs in criminal cases, and 3d, the omission (in term's at least) of the clause, which provided for the allowance by the count}' commissioners of these commissions, though, as I omitted to say, both laws provide that the salary and the times and installments in which it is to be paid, are to be fixed and determined by the county commissioners ; and it is a question whether under this law as revised, the action of the auditor in issuing the warrant is not on the same principle to which we have referred, to be predicated on the action of the county commissioners, allowing the same — but this is not clear to our minds, and we do not decide it.

But in view of the fact that the commissioners of revision were not called upon to make changes in the *meaning*of the laws, when that meaning was clear and explicit and not in conflict with other statutes, and of the *strong*presumption which it is held, arises, that it was not intended by there vision to change that meaning, andof the other reasons which we have assigned, it does not seem *clear*to us, that a change in the meaning of the law was intended by the legislature. The fact that courts have differed as to the meaning of the statute, and that gentlemen, learned in the law, although the statute has been in force for more than five years,have not until very recently asserted such a claim, though drawing their salaries and percentages under its other provisions all the while, is one not without weight on this point, and tends to show that the construction now claimed for the statute is not the one which would naturally occur to a person, even if interested to recover from the county all of the compensation which the law would give to him. We feel constrained therefore to refuse to issue the peremptory writ, and the petition will be dismissed.

Cox, J., dissented.

Cox, J.,

dissenting.

I am compelled to dissent from the opinion of the majority of the court in refusing to allow the writ in this case. I think it ought to be issued, and the auditor directed to pay the claim.

There is such a radical change made by the Revised Statutes upon this subject, as to force the idea that it was not an accident or a mere verbal change, but one that had been considered and determined upon, to give compensation to prosecuting attorneys different from that provided in former statutes.

By the former law this percentage was limited to that on costs collected from the "defendant.”

Why should this word have been omitted from the revision if no change was intended?

As it was before, it limited the percentage to a single source. The omission removes the limitation and extends it to costs, etc., collected from any source. It is true, in one sense, that the prosecuting attorney is the agent of the state as the prosecutor of criminal cases. But in another sense he is a local officer, elected in a county to represent the interests of the state in that county. In the cases he *211prosecutes, the costs are first paid out of the county treasury, and if collected, either from the defendant, or the state, are returned to the county to reimburse it for the costs so advanced. (R. S., 1305.) It is to the interest of the county that they be collected from some source. And to secure that end better, some incentive to the officer in the way of additional compensation would seem to have been in the minds of the legislators. The state only agrees to refund costs to the county in cases where there has been a conviction of a penitentiary offense, and the convict delivered to the penitentiary.

The payment of additional compensation in cases of conviction may be, and is, an innovation in the practice of this state. But it has been the law in the U. S. government, and in almost all the states, to give to the prosecuting attorney or district attorney, an additional compensation in cases of conviction, as a reward for his vigilance. Most of the states provide a certain annual or per diem compensation to such officers, and an additional one in cases of conviction for different offenses, the amount varying according to the grade of the offense of which the prisoner is convicted.

Why may this not be done in this state ? It is only a different manner of compensating the officers, and this may be made as well by a percentage on costs collected on conviction, as to fix a gross sum per annum. And this universal practice in the different states may well have been the reason which operated in the minds of the legislature in making the change. An additional argument may be drawn from the fact that it has been the settled law of the state for years to authorize the county commissioners to allow fees to officers in cases where the state fails, and for expenses incurred in hunting persons charged with felony who have fled the country. Revised Statutes, sections 1308 and 1309.

But it is said that this would be an innovation on the long established policy of the state. So it is, and, therefore, it can hardly be conceived that the law would have been so changed, unless it was so intended. I grant that the general rule is that when a statute is revised and reenacted, with slight verbal alterations, that the same construction is to be given in the revised and consolidated form, although the language has been so changed. But where it is reenacted in a different form, and substantial words are omitted or added, which give an entirely different meaning to it, then the only inference can be, that the legislature intends the change to be a substantial one, else it would not have been made.

But it is said that these costs were not collected. It is true that no suit was instituted, nor was there one necessary. The state has said by its statutes that whenever a convict is delivered from any county to the state, it will repay to the county the costs which the county has expended in the conviction. If A. authorizes B. to expend money for him, and agrees to refund it, does not B. when he receives the money from A., either by himself or his agent, in reality *collect*it from A.? It certainly is not necessary to institute a suit in order that the money so obtained shall come under the designation of a collection.

It is said, however, that these costs are not collected through the agency of the prosecuting attorney, and therefore he is not entitled to them.

It is admitted, however, that if the costs were collected from the *defendant,*that the prosecuting attorney would be entitled to his percentage. This has always been the practice. But how can it be contended under the statute, that when the costs are collected from the defendant, that it is any more through the agency of the prosecuting attorney than when repaid by the state? While section 1273 provides that the prosecuting attorney shall issue an execution for costs and collection, it is also provided by section 7333 of the Revised Statutes, that in cases of conviction of felony the “clerk'’ shall issue an execution for the costs, which shall be served and returned by the sheriff, and the sheriff shall sell any property levied on, and pay out of the proceeds the costs.

Here, in the actual collection, the prosecuting attorney does nothing, and yet he would under the old law and the present construction of the court of the revised law, be entitled to his percentage.

*212And so when the costs cannot be made of defendant on execution, they are refunded by the state on the certificate of the clerk. It is the execution issued by him which collects the money from the defendant, and the *certificate*from *him*which in the other case collects it from the state.

In neither case is it necessary for the prosecuting attorney, either to issue an execution, or certificate, or personally to receive the costs? He is the actor, the efficient agent in the return to the county where, as prosecuting attorney, he procures the conviction of the offender; the subsequent sentence, delivery to the warden of the penitentiary, and collection of the costs from the state, are btrt the effects of his efficient action. The case of Smith v. Linn County, 55 Iowa, 232, I think settles this principle.

But it is said that the state is th'e client of the prosecuting attorney, and the paj^ment to him of a percentage on money refunded to the county, is not a collection for the defendant, but for his client. Admit this to be so. So is the salary which the state pays him, and if, in addition to that, she sees proper to give him an *additional*reward for vigilance in'the conviction, and *withhold*it on non-conviction, who shall complain ? If the state holds out this additional inducement to the officers for vigilance, is it not like the contract which clients in civil lile often make to ensure energy and vigilance in the prosecution of private claims, and which, inducing extraordinary labor and watchfulness, often repays far more than the outlay ?

I am informed that the construction I have placed on this statute has been carried out in a number of counties of the state. It has also been so held in a similar action in the district court of Ticking county, a court of coordinate jurisdiction with this court.

It is intimated that even if the relator were entitled to the amount, it should be in another form of action, on application to the county commissioners for the allowance. I can see no reason for this. While section 1297 provides that the salary of the prosecuting attorney shall be fixed b3r the commissioners, section 1298 allows absolutely in *addition*to his salary the percentage on costs. It does not require *any*additional allowance. The amount is ascertained, it is in the treasury, and the auditor is the proper person to call on to draw it out.

I think the writ should be awarded.