October 25, 2012

Frazier vs. Commonwealth, Lincoln, 1851



Frazier vs. Commonwealth.


51 Ky. 369; 1851 Ky. LEXIS 75; 12 B. Mon. 369

December 5, 1851, Decided


DISPOSITION: Judgment affirmed.

COUNSEL: Harlan, Attorney General, for plaintiff; Robertson, for defendant. 



 [*369]  JUDGE HISE delivered the Opinion of the Court.

THE authority of the Governor, to remit fines and forfeitures is so restricted by our present Constitution, that he can not in its exercise in future obstruct or defeat the operations of such laws as have or may be passed giving to prosecuting attorneys a part of such fines and forfeitures as compensation for their services, and as incentives to a prompt, vigilant, and faithful  [*370]  discharge of their public duties--hence the question presented in this case is now of but little importance whichever way it may be decided. J. T. Boyle, as Commonwealth's attorney for the twelfth judicial district, prosecuted George Miller on an indictment for keeping a tippling-house, and obtained a judgment against him for the sum of sixty dollars, the penalty imposed by law for the commission of the offense charged. After the judgment was replevied, the Governor remitted one half of the fine, to-wit: thirty dollars. And the only question presented, is, whether the prosecuting attorney [**2]  is entitled to the whole, or to only one half of the residue of the fine which was not remitted.

The prosecuting attorney is by law entitled to one half of the fine recovered against a person convicted of the offense of keeping a tippling-house. But it is insisted that as such law can have no effect to limit or restrict, in any degree, the constitutional authority of the executive to remit the whole or any part of such fines--that the portion thereof allowed to the Commonwealth's attorney as compensation for service may be surrendered altogether, or reduced in amount at the discretion of the Governor. Let this be admitted, yet it is the opinion of the Court that if the Governor remits a part of the fine only, and leaves a part to be enforced, less than half, or which is precisely one half of the amount of the fine for which judgment had been recovered, then the Commonwealth's attorney is entitled exclusively to the whole of the residue of the fine not remitted, if it does not exceed one half of the amount of the judgment recovered. The Governor may remit the whole fine and thus deprive the attorney of his legal compensation. But if the Governor does not remit the whole but only a [**3]  part of the fine, the attorney is by law entitled to the whole of the residue, if not more than sufficient to pay to him the proportion of the whole amount of the judgment recovered which the statute gives to him.

Wherefore the judgment of the Circuit Court, having  [*371]  been rendered in conformity with this opinion, is affirmed.

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