STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 9, 1970

Robert P. Kelley
States Attorney, Perkins County
Lemmon, South Dakota 57638

OFFICIAL OPINION NO. 70-29

Proceeds of a paid fine for violation of state law become school funds. Proceeds from forfeited bail are not deposited with the county treausrer, and credited to the County General Fund. (Sec. 3, Article VIII, Constitution; SDCL 13-13-4 and 23-48-30)

Dear Mr. Kelley:

You have requested my official opinion in regard to the proper disposition of bail and fine money arising in criminal actions.

Situation 1. "A" is arrested for the violation of the state criminal law. He is taken before a magistrate and his bail is set at $25.00 which is posted. "A" however fails to appear at the time fixed for hearing, and the bail is forfeited.

Situation 2. "B" is arrested for a violation of state law. He is taken before a magistrate, pleads guilty, and receives a sentence of a $25.00 fine.

You have advised me that you have instructed your county treasurer that the $25.00 bail, as forfeited in Situation 1, be deposited to the County General Fund, and that the $25.00 fine, paid in Situation 2, be segregated and remitted for the public school funds.

There can be no question that your instructions as to the disposition of the proceeds of a paid fine is consistent with the state law is correct.

The difficult question is to determine whether the proceeds of a forfeited bail inure to the benefit of the County General Fund, or inure to the benefit of the school fund.

Article VIII, Sec. 3 of our Constitution, in part provides:

That the proceeds of all fines collected from violation of state law shall be paid to the county treasurer of the county in which said fines shall have been imposed, and by him remitted to the state treasurer and apportioned by the commissioner of school and public lands back to the county from which such moneys were collected to be distributed among and between all of the several public schools incorporated in such county in proportion to the number of children in each, of school age, as may be fixed by law.

SDCL 13-13-4 sets forth the sources of the county general school fund and provides that among other things comprising such fund are "the net proceeds of all fines for violation of state laws."

SDCL 23-48-30 provides:

All fines, forfeitures, and pecuniary penalties for the violation of any state law, when collected, shall be paid into the treasury of the proper county, the net proceeds of which shall be applied and used each year for the benefit of the public schools of this state.

There is no question that there is a distinction between the proceeds derived from the forfeiture of bail and the collection of a fine, imposed as the result of a conviction for a public offense, or the violation of any state law. The constitutional provision and SDCL 13-13-4 are concerned only with "fines" collected for the violation of state laws. These provisions do not require that the proceeds of a bail forfeiture be placed into the school funds.

The only statutory authorization that may be said to require the proceeds of a bail forfeiture to be added to the school fund is SDCL 23-48-30. This office, in an opinion reported in 1957-58AGR 148, discussed SDC 13.0113 (the previous designation of SDCL 23-48-30 in the 1939 Code), and said:

Such forfeitures as are therein mentioned do not include the forfeiture of bail but only such as are pecuniary in character and imposed for the violation of some law. There is no penalty imposed for a default in complying with the conditions of bail. Forfeiture of bail is not a pecuniary penalty for the violation of law.

I have also considered State v. Nelson (1896) 8 S.D. 327, 66 N.W. 468 and State v. Davis (1898) 11 S.D. 111, 75 N.W. 897, 74 Am. St. Rep. 780. Both of these cases involved the forfeiture of bail. In State v. Davis our court stated:

Although such actions are properly prosecuted by the States Attorney in the name of the state, the entire expense is paid by the county, as the real party in interest, and the forfeiture imposed as a penalty for the failure of the accused to appear according to the terms of his recognizance must be paid, as soon as collected, into the treasury of the county, to be added to the county general fund, the state recovering no part thereof. Com. Laws, Sects. 224, 6984, 761l.

It is interesting to note that Section 7611 of the Compiled Laws above referred to, still exists as SDCL 23-26-11 through 26-11-13, inclusive, in the 1967 Compilation of South Dakota Law.

It is my opinion that the proceeds of a forfeiture of bail is not money that inures to the benefit of the school funds. I agree with you that such bail forfeiture, when collected, is to be deposited with the county treasurer and by him credited to the County General Fund.

Respectfully submitted,

Gordon Mydland
Attorney General