
    No. 6880.
    M. A. Foute v. The City of New Orleans.
    The Statutes of 1855, section 70 and 71, Session Acts, uage 162, providing that the several District Attorneys throughout the State shall be entitled to demand and receive one-fifth of all sums, first . deducting the per centage allowed by law to the sheriff for collecting, and paying over the same, which may be collected on forfeited bonds, recognizances and fines imposed in criminal prosecutions, must be construed as referring to fines and forfeitures growing out of violations of the criminal laws of the State, and in the imposing and collecting of which the services of the District Attorney and sheriff are required.
    Where no services are required of a public officer, no compensation is allowed.
    The law does not require the District Attorney of the parish of Orleans to appear in his official capacity, and prosecute persons for violations of law before the Recorders’Courts of the city of New Orleans, nor does it allow him any compensation for doing so.
    PPEAL from the Fourth District Court of New Orleans, Price, J.
    
      Pandell Punt and W. B. Hennen, -for plaintiff and appellant.
    
      J. J. Michel, for defendant and appellee.
   Howell, J.

A motion is made to dismiss the appeal in this case on the ground that the motion for an appeal was not made during the same term, and within the same calendar month in which the judgment was rendered, and no citation of appeal has been served. The appellee has waived this objection, by making an appearance in this Court before raising it. The rule must be dismissed.

On the merits, we think the Court below did not err. The plaintiff claims from the city, as fees pertaining to his office of District Attorney, one-fifth of the fines imposed by the several recorders of the city in criminal prosecutions and misdemeanors, and paid into the city treasury during his term of office, and bases his right to recover on the 70fch and 71st sections of the act relative to criminal proceedings, approved March 14th, 1855, (Session Acts, p. 162) which are in the following words:

“Seo. 70. The several District Attorneys throughout the State shall be entitled to demand and receive one-fifth of all sums, first deducting the per centage allowed by law to the sheriff for collecting and paying over the same, which may be collected on forfeited bonds, recognizances and fines imposed in criminal prosecutions and misdemeanors by any court of justice.

Seo. 71. The fines and forfeitures collected for violations of the criminal laws of the State, and which have been required by law to be paid into the State treasury, shall belong and be paid into the treasury of the parish in which they may be collected, and in New Orleans into the treasury of the city.”

“It is admitted that the plaintiff did not regularly attend in tho Recorders’ Courts, but that he appeared and acted for the State before them, whenever required, in important cases, such as murder, arson, and the like. ”

We construe the above law to grant compensation for services actually rendered by the District Attorneys, and not as awarding a bonus to the officer; and it is not pretended that plaintiff represented the .State or rendered any service in the imposition of the fines by the various recorders, one-fifth of which he is claiming in this suit. Not having rendered the services, admitting the law to apply to the Recorders’ Courts (upon which point it is unnecessary to express an opinion) he is not entitled to recover.

Judgment affirmed, with costs.

On Rehearing.

HoweiiI/, J.

After further examination of the argument and authorities presented by plaintiff’s counsel, on the application for a rehearing, and in his original brief, we are not convinced that we erred in our conclusion in this case. The statute relied on is, in this connection, treating of the expenses of criminal prosecutions, and it requires such expenses to be paid by the various local authorities; directs that the fines and forfeitures collected for violations of the criminal laws of the State, shall be paid into the several local treasuries, instead of the State treasury as previously, to contribute, as we understand, towards said expenses, and allows to the District Attorneys throughout the State, as among those expenses, one-fifth of the sums so collected, first deducting therefrom the per cent-age allowed by law to the sheriff for collecting and paying over the same. This, in our opinion, refers to fines and forfeitures growing out of violations of the criminal laws of the State, and in the imposing and collecting of which the services of the District Attorneys and sheriffs are required. In this case, it is not pretended that the District Attorney or sheriff had any part in the proceedings, by which the fines in question were imposed, collected and paid into the city treasury.

All compensation is allowed by law to public officers for services required of them, as duties of the offices which they fill. When no services are required by the. law, it does not allow compensation. In this case, the law did not require plaintiff to render, nor did he, in point of fact, render any services to the State or city for the sum of $17,933 91, which he is demanding of the city; and we are still of the opinion that the law invoked does not entitle him, under the facts, to one-fifth of the particular fines imposed by the Recorders, which he claims.

It is therefore ordered that the judgment heretofore rendered by us in this cause rernain undisturbed.  