78 Iowa 263 | Iowa | 1889
The facts of this case in brief are That one John I. Harbin was arrested on preliminary information, and pending a hearing before the magistrate he was admitted to bail, the plaintiff being a surety on the bond. There was a breach of the condition of the bond by a failure to appear, and such failure was by the justice duly entered of record. An action was instituted on the bond in the proper court, and a judgment entered against the plaintiff and another surety for seven hundred and ninety-five dollars, with eight per cent, interest thereon, and for costs. This judgment was entered in September, 1884, and in October, 1885, the governor issued the following conditional remission :
“The state of Iowa, to all to whom these presents shall come, greeting:
“Know ye that, by virtue of authority in me vested by law, I, Burén R. Sherman, governor of the state of Iowa, for good and sufficient reason to me appearing, do hereby, upon conditions hereinafter set forth, remit six hundred dollars of the amount of a judgment , of seven hundred and ninety-five dollars, imposed upon John Harbin on the twenty-second day of September, 1884, by the circuit court of the county of Union, rendered on the forfeiture of appearance bond of John I. Harbin, provided the said John Harbin shall immediately pay the balance of said judgment, including
“Done at Des Moines, this sixteenth day of October, in the year of our Lord one thousand eight hundred and eighty-five, of the independence of the United States the one hundredth and tenth, and of this state the thirty-ninth.
“By the Governor, Burén R. Sherman.
“Frank D. Jackson, Secretary of State.
“D. W. Smith, Deputy.”
The conditions of the remission were on the part of the j udgment debtors fully complied with. The j udgment not being cancelled of record, an execution was taken in January, 1886. The prayer of the petition is for an order staying the collection of the judgment, and that it be cancelled of record. To the petition stating substantially these facts there is a demurrer, and the argument presents two questions which we notice in the order of presentation.
I. Had the governor authority, after the bond was prosecuted to judgment, to remit any part thereof ? The power óf the governor to make such remission after the entry of the breach of the conditions of the bond by the justice, and before judgment, is not questioned in the case; the point in argument being that, after judgment, there is no forfeiture within the meaning of the law, but a judgment over which the governor has no control or right of remission. The question involves a construction of section 16, article 4, of the constitution, the essential part of which is that the governor “ shall have the power to remit fines and forfeitures under such regulations as maybe prescribed by law.” The “regulations” prescribed under this provision are in section 4712 of the Code, in these words: “The governor shall have the
II. Under a concession by appellant, for the purpose of argument, that the governor has power to remit forfeitures after judgment, the query is submitted, if the right exists to remit as to others than the accused. Or, in other words, does it exist in favor of sureties on the bond? We think it does exist as to both principal and sureties. The inquiry is, is it a forfeiture ? It is no less a forfeiture as to the sureties than as to the accused or principal in the bond. The law is that the governor has power to remit forfeitures. It does not distinguish
Affirmed.