The State of Florida, Appellant, vs. Chandler H. Smith, et als., Appellees, 16 Fla. 175

Me. Justice YaAVAlkbebuegii delivered the opinion of the court.

The plaintiff assigns for error the ruling of the court overruling the demurrers to the second and third pleas, and in striking off the replications thereto. - The second plea sets up the'fact that the State, plaintiff in the action, repealed the penalties prescribed against defaulting collectors; that the existence of these penalties was an inducement to the signing of the bond by the sureties; that these penal statutes afforded a protection to them and a means by which the plaintiff 'could compel a performance of duty on the part of the collector; that by such repeal these means of compelling performance was relinquished; that these penal statutes were an essential condition of the ■obligation, and that by the repeal these sureties were discharged.

By the act of 1869, (Chap. 1,713, § 52,) it was provided that “ if any collector of revenue shall, without good and sufficient excuse, neglect to pay over, according to the requirements of law, any money collected by him by virtue of his office, he shall not be entitled to .the fees thereon, and shall moreover be deemed guilty of embezzlement of the money so collected,” and punished by imprisonment in the State penitentiary not exceeding ten years, or by a fine. If the collector was liable to be punished under that statute, does its repeal affect the sureties ?

The penalty given by the statute in force at the time the bond was executed is not contemplated by any language used in the bond itself. That statute gives no cumulative remedy against the officer for the collection of the money remaining in his hands. It provides no means of compelling the payment of money. It is a statute against embezzlement, and its enforcement against the guilty officer is at the option of -the government and not within the control of his sureties.

If the statute had not been repealed, the sureties could not have demanded its enforcement before suit and judgment on the bond against all the obligors. It was held in New York, when the Legislature had provided a

summary procedure against a collector by warrant, in case of his default, that the issuing of such warrant within the specified time, and its return unsatisfied, need not precede •an action against the sureties on his bond. Looney vs. Hughes, 30 Barb., 605. If this statute had not been repealed, the sureties could not plead to an action on the bond that the crime (if a crime had been committed) had not been prosecuted; that would not constitute a defence to such an action.

The State is not «estopped from collecting upon the bond because it does not -enforce the penalties, nor is it within the power of the sure- . ties to compel the State to prosecute. While it is true that there may be a moral force in the «existence of the penal statute, which operates more or less upon the fears of public officers to prevent the commission • of crime, it cannot be claimed that the quality of property •exists in this moral power, or that the failure to prosecute -deprives any party of the means of enforcing the payment -of money.

The legal purpose and object of the punishment Is not to collect the debt but to punish the wrong-doer, and to protect the public against his evil example. The State, in repealing this penal statute, simply says it will not prosecute a certain offence by means of the criminal code. The •defendants had no defence in the fact that the State did not prosecute while the law was in force, and we hear no reason for saying that the State is estopped by declaring it will not prosecute. Cooley’s Con. Lim., Chap. 9,286-7, and authori"ties there cited.

The power to punish an alleged crime is lodged in the State, and there is no right vested in any individual to control that power; it can be exercised or not only at the option <of the State. The adoption of the doctrine suggested by this plea might be attended with serious consequences. It would be hazardous to legislate in regard to crimes by •■changing the existing penalties, lest some contract between individuals or between private persons and the State might be affected. The contract, however, was entered into with reference ■to the sovereign power of the State.

Every statute- relating to the police is subject to modification or repeal, at the will -of the Legislature. Every contract is made with reference to the statutory provisions directly affecting the rights of .parties, but with reference to the power of the Legislature «to change the law so far as such change does not affect those rights. Can it be possible that a mere penal statute, conferring no private right, and giving no private remedy—a statute referring entirely to the sovereign power, has any effect upon a contract like this one ?

If the act of the Legislature had impaired the contract, or taken away a remedy which had been available, so that the condition of the sureties was changed, and means of redress were gone or seriously impaired, they might insist that the State had lost its right to charge them. The legislation referred to has in no way affected the rights or the remedies of the parties, and, therefore, the conclusion is that the plea does not sot up any allegations off law or fact which constitute a defence to the action. As to the third plea.

This plea alleges that at a time-when the collector had failed to perform his duties, and a. condition of the bond had been or was being broken, these-defendants requested the Governor to suspend the collector and designate some other person to perform his duties as-provided by law; that the Governor neglected and refused to comply with their request. In other words, they allege-that the plaintiff through its officers was guilty of laches,, whereby the defendants (sureties) were damaged or their hazard increased, &c. It has long been well settled by judicial decisions that laches cannot be imputed to government.

Governments-transact business through agents only, and cannot, like private pei’sons, be subjected to the observance of such sharp and close rules of conduct as may be exacted of individuals in their commercial dealings with each other. If it were-not so, by the connivance of sureties, for instance, with the agents of government, it might he made impossible to enforce the bonds of its financial officers. "We can add nothing-to the arguments and reasoning presented by the Supreme-Court in U. S. vs. Kirkpatrick, 9 Wheat., 720; U. S. vs. Vanzandt, 11 ib., 184; Dox and others vs. The P. M.

Gen’l,. 1 Peters, 318; Smith vs. U. S., 5 Peters, 292, and other-.authorities cited by the counsel for the appellant. . It is further suggested that the act of February 14, 1873, is the law under which- the Governor is supposed to be invested with the power to suspend a collector of revenue for .neglect of duty. This act was passed since the giving of the bond in suit, and could not have been contemplated by the ¡sureties when they executed the bond.

It is optional with the Governor by the terms of that act to exercise that power; but if he had violated a plain duty in the matter it would not discharge the sureties, according to the doctrine •of the cases referred to. It is our opinion that the matters set up in the third plea by the defendants are not available as a defence, and that the judgment of the Circuit Court in overruling the demurrers to the second and third pleas must be set aside.

As to the exception taken by the defendants to the ruling -of the court sustaining the demurrer to the first plea, the defendants not having appealed, there is no question presented thereon by the assignment of errors. The judgment of the Circuit Court is reversed, and the cause is remanded for such proceedings as maybe had in •conformity to law and practice of the court.