Stophlet v. Hogan

Mr. Justice Bigelow delivered the opinion oe the Ooubt. It is suggested by counsel for appellee, that the written proposition offered by appellant, and which he requested the court to hold, is insufficient, because it contains no question of law. The point is not specially urged, but we are of opinion that it presents the only matter of law which appellant could present on the evidence, which is, whether there is a total lack of evidence tending to show any liability of appellant to appellee on the offer of reward, and so it takes the same place in a trial before the court as an instruction to a jury to find for the defendant does in a case where it is claimed there is no evidence to support a verdict for the plaintiff. The word “ apprehension,” as used in the offer of reward, has a well defined meaning, as much go as the word “ arrest,” for which it stands. From the view we take of the matter it is immaterial to inquire whether Howard was ever formally arrested for the crime of setting fire to appellant’s store building or on some other charge. It is certain, however, that he did not voluntarily surrender himself for the' purpose of being tried on the charge of arson, and it is further certain he was tried and convicted of that crime; hence it would seem that he must have been arrested by appellee, or some person acting under him, for the crime of which he was convicted, since he was in the custody of appellee all of the time after he was first arrested until convicted. The apprehension of the person who committed the crime was the primary object for which the reward was offered; the conviction was the evidence that the right person had been apprehended, and the award can not be apportioned. Pool v. The City of Boston, 5 Cushing, 219. Whether appellee is entitled to the reward for apprehending Howard depends upon what his duties are as an officer of the law. Section 1 of Division 6 of the Criminal Code of this State is as follows: “ When the fact that a felony has been committed shall come to the knowledge of any sheriff, coroner or constable, fresh pursuit shall be forthwith made after every person guilty thereof, by such sheriff, coroner, constable and all other persons who shall be by any of them commanded or summoned for that purpose; every such officer who shall not do his duty in the premises shall be punished by fine, in a sum not exceeding $100, or imprisonment not exceeding three months.” Section 2 provides : “ It shall be the duty of every sheriff, * * * without delay, to serve and execute all warrants, writs, precepts and other process, to him lawfully directed.” Section 15 of Chapter 125 of the Revised Statutes, entitled “ Sheriffs,” is as follows : “ Sheriffs shall serve and execute, within their respective counties, and return all writs, warrants, process, orders and decrees of every description that may be legally directed and delivered to them.” The law provides a scale of fees which sheriffs are authorized to charge in the discharge of their official duties, and the Constitution provides that for his services he shall be paid a salary, to be fixed by the county .board. It is provided by Section 213 of the Criminal Code as follows: “ If any officer authorized by law to charge or receive fees, salary or pay, shall charge, claim, demand or take any greater fee, salary or pay than such as is by law allowed to him for the service performed, * * * he shall, on conviction under this section, for the first offense, be fined in any sum not less than $25 nor more than $200; and upon conviction for a second or any subsequent offense under this section, he shall forfeit his office and shall be confined in the county jail not less than thirty days nor more than -one year.” What was it that appellee brought this suit for, if it was not “ pay ” for arresting Howard ? Let him tell it himself. Question: Do you recollect the burning of the store building belonging to the defendant, Mr. Stophlet ? Answer: Tes, sir; it was in January, 1896. Question: I will get you to state, Mr. Hogan, if there was any reward offered for the apprehension of the party or parties that burned that building ? Answer: Yes, sir; I saw a reward. Question: How, state whether or not you did anything toward the apprehension or the conviction of any one in pursuance of the offering of this reward? Answer: Yes, sir; after a considerable effort on my part, I caused the arrest of this Harry Howard. This case must stand or fall upon a correct answer to the question: Can an officer of the law whose duty it is to make an arrest and whose fees for the service are fixed by law, and who becomes a criminal by exacting more for his services than the law allows, recover on an offer of reward for making the arrest ? The question, as it seems to us, suggests its own answer. Courts can not be used to assist persons to do unlawful acts. When the duties of a public officer are fixed, and his compensation declared by law, he can not be allowed to contract and sell his services for higher rates than the law gives him, and certainly, he can not have the aid of the courts to recover the extra compensation. We know there are authorities that hold the contrary, where the services could be classed as “ extra official,” but they are few. The case of President, etc., of City Bank v. Bangs et al., 2 Edw. Ch. (N. Y.) 95, cited by counsel for appellee as one of them, is really not, as the vice-chancellor in that case really decided nothing as to the claim of the officers to a part of the fund, but said, if they Had any claim “as upon a quantum meruit” it should be made against Bangs, to whom the entire fund paid into court was awarded. But that case was decided by the vice-chancellor of New York, when the decision in Hatch v. Mann, 9 Wend. 262, decided by the Supreme Court of that State, was supposed to be the law, but which was afterward reversed by the Court of Errors (the highest judicial tribunal in the State), in language that is certainly forceful. Hatch v. Mann, 15 Wend. 44. In the Matter of Russell, 51 Conn. 577 (50 Am. Rep. 55), the Supreme Court of Connecticut, after stating that anciently, an officer who took a reward which had been voluntarily given him for his services, and which had been usual in certain cases for the expeditious performance of his duty, was not considered guilty of extortion, says: “And it is now well settled that a public officer whose compensation is fixed, or whose fees are prescribed by law, can not legally contract for or demand a larger compensation or higher fees, in the form of a reward or in any other form, for services rendered in the line or scope of his official duties. Bridge v. Cage, 2 Croke, 103; Stotesbury v. Smith, 2 Burr. 924, 1 W. Blackstone, 204; Callagan v. Hallett, 1 Caines, 104; Weaver v. Whitney, Hopk. Ch. 13; Hatch v. Mann, 15 Wend. 44; Smith v. Whildin, 10 Penn. St. 39; Gilmore v. Lewis, 12 Ohio, 281; Stamper v. Temple, 6 Humph. 113; Pool v. City of Boston, 5 Cush. 219; Means v. Hendershott, 24 Iowa, 78; Morrell v. Quarles, 35 Ala. 544; Brown v. Godfrey, 33 Vt. 120; Davies v. Burns, 5 Allen, 349.” That case was a stronger one for the parties claiming the reward than this case is, as the services there, for which the reward was claimed, were rendered by the officers while off duty. But it is unnecessary to extend this opinion further. We hold that appellee, in arresting Howard, did no more than his legal duty, and that the promise of reward of appellant was , without consideration and void as to appellee, and no recovery can be had on it. The judgment of the Circuit Court is reversed.