Wing v. Smilie

[533] The opinion of the court was delivered by TAFT, J. It is enacted by No. 41, Acts of 1886, that one-fourth of the fines imposed under s. 3802, E. L. “ shall go to the complainant when complaint is made, otherwise to the prosecuting officer.”' This proceeding is a petition for a mandamus to determine whether the grand juror who instituted the complaints mentioned in the petition, before a justice of the peace and who prosecuted them before the justice, or, the state’s attorney who prosecuted the causes in the County Court, where they passed by appeal and were finally determined, is entitled to the fourth part of the fines imposed under such complaint. It was the evident intent of the Legislature to encourage prosecutions under chap. 169, E. L. by rewarding the person who sets the machinery of the law in motion, and so in the first instance gives the fourth-part of the fine to the complainant i. e. the one who makes application to the officers of the law to prosecute, and upon whose accusation prosecution is begun. Failing a complainant, we think the reward goes to the officer who institutes the proceedings. It is upon his complaint that the respondent is arraigned, tried and convicted, if conviction is had, although the state’s attorney is required to prosecute the cause in the County Court. The latter part of act No. 41 provides that, in case of a second conviction of the offences named in s. 3802, “the officer prosecuting said cause to final judgment” shall receive fifty dollars. This is significant, for why add the limitation “ prosecuting said cause to final judgment,” if without it, the same officer would be entitled to it. It clearly evinces an intent, that failing a complainant, to give the fourth part of the fines to the officer upon whose complaint the respondent is arraigned and tried. It is adjudged that a writ of mandamus issue in accordance with the prayer of the petition. The payment of the sum named therein to be made within five days from the issuing of the writ. No costs claimed.