McClain v. Lawrence County

Opinion by Rice, P. J., The principal question in this case is as to the liability of a county to a licensed detective for fees for serving a warrant of arrest and a commitment issued to Mm by a justice of the peace in a felony case, the défendant havmg been convicted and sentenced. The Act of May 23, 1887, P. L. 173, entitled “An act to make the carrying on of the business of detectives without license a misdemeanor, and to regulate the licensing and powers of detectives,” provides in the 3d section as follows : “ Any person or persons, licensed as aforesaid, shall have the power to serve warrants in criminal cases within this commonwealth.” Moreover, Mdependently of the act of 1887, the plaintiff had power to serve the warrant. Upon the question of the power of a justice to issue his warrant in a criminal case to a private citizen, and of the latter to execute it, Judge King said: “The authorities from the Year Books down to the most recent and approved text writers flow in one uniform course and all agree, that a justice of the peace, in a criminal case, may authorize any person whom he pleases to be his officer. All, however, consider that it is better to direct his process to the constable of the place where it is to be executed ; and this because no other constable or a fortiori, a pri [277] vate person can be compelled to execute itCommonwealth v. Keeper, 1 Ash. 183. The suggestion that the plaintiff was acting as the agent for hire of some private person has nothing on the record to support it. He was a licensed detective, it is true, but there is nothing in the act restricting his power to serve warrants to cases in which he has been employed as a detective. Having undertaken to serve the warrant, his power and duty to execute it were the same as those of a constable. We are of opinion that he was entitled to the same fees, upon the same principle which permits the taxation of the officer’s fee for the service of subpoenas by private persons. See Patterson v. Anderson, 1 Pa. C. C. 86; S. C. 16 W. N. C. 626, Cody v. Clelam, 1 Pa. C. C. 8, Lyon v. Marshall, 1 Pa. C. C. 90, Peterson v. Williams, 1 Pa. C. C. 93, Carroll v. Petry, 16 W. N. C. 416, Coleman v. Hess, 1 Browne, 274, Elliott v. Mutual F. Ins. Co., 1 Pa. Dist. Rep. 546, Youngs v. Harold, 3 Pa. Dist. Rep. 510, Horner v. Harrington, 6 W. 331, and McCallister v. Armstrong Co., 9 Pa. Superior Ct. 423. The county was admittedly liable for the cost of prosecution ; and the court committed no error in taxing these fees as part thereof. It is admitted that the fees for serving subpoenas should have been taxed according to the fee bill of 1899, Act of February 17,1899, P. L. 3; and for the taxation of the five items, “Assist, $1.00” and “2 releases, $2.00” we can find no warrant in the fee-bill. The contention that ■ the plaintiff is entitled to compensatory fees for those services cannot be sustained. The principle enunciated by Chief Justice Gibson in Bussier v. Pray, 7 S. &. R. 447 forbids their allowance. It follows that the plaintiff was not entitled to judgment for the full amount of his claim, and in view of the stipulation of the case stated we doubt our power to enter judgment for part. It is ordered, that, unless the parties within thirty days shall file a stipulation in the office of the prothonotary of this court permitting judgment to be entered for such part of the plaintiff’s claim as under the foregoing opinion defendant is liable for, the judgment be reversed; but if such stipulation be filed that then the judgment be reduced to $5.44, and as thus modified affirmed.