The State v. Josiah Dyches et al., 28 Tex. 535

Donley, J. —By the 11th

section of the Vth

article of the constitution of this State, it is provided, that “in all criminal cases, except in those of treason and impeachment, the governor shall have power after conviction to grant reprieves and pardons; and, under such rules as the legislature may prescribe, he shall have power to remit fines and forfeitures.” The legislature have provided, that “ after conviction the governor of the State shall have power, without restriction, to remit fines and forfeitures of a pecuniary character; but he shall report to the legislature all cases in which he has remitted such penalties, with his reasons for the same.” (O. & W.

Dig., Code of Crim. Pro., Art. 809.) It is contended by the attorney general that the governor did not have the right to remit the forfeiture which he undertook to remit; that the constitution provides that the governor, under such rules as the legislature may prescribe, shall have power to remit fines and forfeitures, and that the power is to be exercised after conviction.

The power to remit fines and forfeitures after conviction is given in express terms, and it is in this case unnecessary to inquire as to the power of the governor to “ grant reprives and pardons,” and “to remit fines and forfeitures” before conviction. It- cannot apply to the sureties on a bond or recognizance if the principal have escaped and cannot be recaptured, or if he should die after final judgment has been entered against him and the sureties on his bond or recognizance.

The conviction for the offense becomes an impossibility, and if the position assumed is correct, that the executive has no power to remit a forfeiture on a recognizance or bond until the principal in the bond or recognizance be convicted of the offense with which he is charged in the indictment, in case of the death of the principal after a judgment has been entered against Ms sureties on the bond or recognizance, then the death of the principal after the rendition of judgment against his sureties would deprive the executive of power to remit the forfeiture. This reasoning cannot be adopted.

The power of the executive to act under the law clearly arises when there is a final judgment against the sureties on the bond or^ recognizance in the court of the last resort. The judgment on the bond may properly be held as the conviction mentioned in the 809th

article of the Code, upon which the power is expressly given to the governor to remit fines and forfeitures. As we have said, it is unnecessary here to determine whether the governor had such power, without the express grant of it contained in the constitution and the law which we have cited, and whether it might be exercised by him before conviction.

It is farther contended by the appellant, that the governor cannot remit the forfeiture after judgment, so as to deprive the attorneys of the commissions to which they would have been entitled if there had been no remittitur by the governor; that the right of the attorneys to the percentage is a vested right; that their duties were discharged when the execution for the amount of the recovery was placed in the hands of the sheriff; that there remained no other labor to be performed by them.

The right of the attorneys to the fees for collecting the money did not attach on placing the execution in the hands of the sheriff. The defendants may have had no property liable to execution, and it may have been impossible to collect any part of the judgment. A levy might have been made on property claimed by a stranger to the execution, which might involve a trial of the right of property.

It is believed that the law only contemplated that there should be an adjudication upon the matters in controversy about which relief might be sought, and did not contemplate that there should be a trial of the defendant on the indictment before the executive could remit the judgment of forfeiture that may have been rendered against the sureties. The words of the law are, that “ after conviction the governor shall have power without restriction to remit,” &c.

If the conviction must be held to refer to the conviction of the alleged offender on the indictment, to authorize the governor to remit a judgment of forfeiture on a recognizance or bail bond, the inconsistency is presented, that, if the defendant is convicted of the offense of which he is charged, the governor may pardon the offense or remit the forfeiture which may have been entered upon the bond or recognizance, but if the defendant be acquitted on the trial of the indictment, the governor has no power to remit the judgment which may have been entered upon the bond or recognizance.

It is believed that the law cannot be so held. The motion in this case, it is believed, is based upon a misapprehension of the rights of the parties. The clerk had no right to tax, as part of the cost in this cause, the amount of the commissions which might become due to the attorneys representing the State, on receipt of the money for which judgment had been rendered in behalf of the State. The commissions which might become due to the officers on collecting the judgments are not costs to be taxed against the defendants.

Costs are “the expenses of a suit or action which may be recovered by law from the losing party.” (1 Bouvier’s Law Dic., 231.) Costs which are incurred in prosecuting an action are usually adjudged against the losing party, in addition to the principal sum which may be adjudged against him. Commissions' in this case, which might have become due to the attorneys if the money had been collected, should have been taken from the money so collected, and we have said the commissions did not become due until the money was received.

It must be held, that the district attorney and attorney general accepted their offices, and agreed to discharge the duties thereof, for such salary and fees as were provided by law, and with the implied agreement that the right to fees for collecting money for the State on a forfeited bond or recognizance was in subordination to the right of the governor to remit the forfeiture, and with it all their claim to commissions for attempting to collect the money. In Conner v.

The Mayor of New York (1 Selden, 296,) it is said: “ The prospective salary or other emoluments of a public officer are not the property of the officer; they are not property at all; they are like daily wages unearned, and which may never he earned. The incumbent may die or resign, and his place be filled, and the wages earned by another.

The right to compensation grows out of the rendition of the services, and not out of any contract between the government and the officer that the services shall be rendered by him.” We have said in this case that the right to the commissions accrues only upon the collection of the money, and, the money not having been collected, no right to fees or commissions has accrued to the officers representing the State in obtaining the judgment. There is no error in this judgment, and it is Aeeirmed.