Cunningham v. County of San Joaquin

49 Cal. 323 | Cal. | 1874

Dissenting Opinion

Wallace, C. J., dissenting in part.

1. The mileage provided by statute is not limited to traveling done by an officer within the boundaries of the county or district of which he is such officer, and upon this point I agree with the majority.

2. I am, however, of opinion that the Court was correct in disallowing mileage to the officer for traveling done by him in taking O’Brien before the magistrate after his arrest. The statute upon which this question is to be determined (1869-70, p. 159) is as follows: “For every mile necessarily traveled, in going only, in executing any warrant of arrest, subpoena or venire, bringing up a prisoner on habeas corpus, taking prisoners before a magistrate or to prison, or for mileage in any criminal cause or proceeding; provided, that in serving a subpoena or venire, when two or more jurors or witnesses live in the same direction, but one mileage shall be charged; thirty cents; provided further, that in the counties of Amador and Sacramento, for every mile necessarily traveled, in any criminal case, twenty cents.”

I think it clear that the meaning of this section of the statute is that (except in the counties of Amador and Sacramento) no mileage is to be allowed to the officer except for the distance traveled by him in going to execute criminal process, and that for traveling done, after he shall have actually served the criminal process in hand, by arresting the accused, serving the subpoena upon the witnesses, etc., he is not entitled to receive mileage.

I therefore dissent from so much of the opinion and judgment of the majority as directs the Court below to render judgment for mileage claimed by reason of traveling done by the officer after he had made the arrest of O’Brien.

Mr. Justice Crockett did not express an opinion.

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Lead Opinion

By the Court, McKinstry, J.:

The “executing a warrant of arrest” and the “taking a prisoner before a magistrate” are mentioned in the statute as separate and distinct acts.

The words “in going only” which immediately precede the words “in executing any warrant of arrest,” cannot be held to apply to the taking of a prisoner before the magistrate, except as applicable to the distance traveled from the place of the arrest to the magistrate, and the officer making the arrest was entitled to his mileage for that distance.

The officer was entitle to his mileage (outside of San Joaquin county) in going to make an arrest and in taking a prisoner toward the magistrate.

Judgment reversed. The District Court will enter a judgment in accordance with the foregoing.