State v. Smith (16 Fla. 175, 1877)

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The second plea sets up the'fact that the State, plaintiff in the action, repealed the penalties prescribed against defaulting collectors; that the existence of these penalties was an inducement to the signing of the bond by the sureties;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 If the statute had not been repealed, the sureties could not have demanded its enforcement before suit and judgment on the bond against all the obligors.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If this statute had not been repealed, the sureties could not plead to an action on the bond that the crime (if a crime had been committed) had not been prosecuted; that would not constitute a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