Wilson v. Bradley

JUDGE DURELLE delivered the opinion op the court. By section 1934, Ky. Stat., it is provided that, “in all cases where the Governor of this Commonwealth shall make a requisition upon the Governor of another State or Territory for a fugitive from justice, the person named in such requisition as the agent of this Commonwealth shall, unless a different condition is contained in the commission of the agent, be allowed to receive as compensation for his services at the rate of six cents per mile for the distance he may travel to and from the jail of the county designated in the proclamation to the place where said fugitive may be arrested — the distance to be computed by the route most usually traveled, and such other fees and necessary expenses as he may have to expend in reclaiming and transporting such fugitive.” Under this section the appellant was appointed the agent of the Commonwealth to demand a fugitive from justice in the state of New York, and lodge him with the jailer of the county of Montgomery. The appellant proceeded to New York, but the Governor of that State refused to honor the requisition; and, upon appellant’s account for mileage to and from New York being presented, the Governor of this Commonwealth refuses to approve it. Certain minor objections to the account as presented, such as that the account includes mileage from Mt. Sterling to Frankfort and return, in order to obtain the requisition; and from the city of New York, where the fugitive was arrested, to the [55] city of Albany, in order to obtain tbe warrant of the New York Governor; as well as the objection that the affidavit filed with the claim, does not show the distance, to be computed by the route most usually traveled, as required by the statute, but only that the distance claimed for was necessarily traveled, — seem to us to be well taken. It follows, therefore, in accordance with the view expressed in Booker v. Stephenson, 8 Bush, 41, that the Governor can not be considered in default for refusing to allow the claim. It was there said, Judge Lindsay delivering the opinion: “If it be conceded that the duty of the Governor in the allowance of such claims is purely ministerial, and that the performance of the same can be enforced by mandamus, still he can not be regarded as in default for refusing to allow a claim which embraces any illegal or unauthorized charge.” This conclusion being reached, we need not consider the question in that case referred to, whether mandamus will lie against the Governor in such case. But, as the Governor did not raise the question whether mamdamus would lie against him, we must assume that the omission to do so was because he desired the question decided whether such a claim ought to be allowed by him. It is urged on behalf of appellant that, unless some' condition to the contrary is inserted in the commission to the agent of the Commonwealth, he is entitled to six cents per mile as matter of right, whether he succeeds in reclaiming and returning the fugitive or not. But we have, though with some hesitation, reached the conclusion that neither fees and expenses in reclaiming and transporting the fugitive, nor mileage of the agent to and from the state in which the fugitive has taken refuge, were intended by the statute to be allowed, except in the event [56] of the reclamation of the fugitive and his return to this Commonwealth. Force is given to this conclusion by the fact that the same sentence of the statute allows the mileage to the agent, “and such other fees and necessary expenses as he may have to expend in reclaiming and transporting such fugitive;” the language used .indicating that the mileage and the fees and expenses are to be allowed only in the event of their expenditure in reclaiming and transporting the fugitive. The judgment is affirmed, the whole court sitting.