120 Cal. 262 | Cal. | 1898
Lead Opinion
This is an appeal from an order of the superior court directing the issuance of a writ of mandate to the state controller, requiring him to draw his warrant upon the state treasury in favor of petitioner for the sum of one thousand dollars. The application is based upon the following facts: Petitioner was a captain of police of the city and county of San Francisco. The governor of the state offered a reward of one thousand dollars for the arrest and conviction of the person or persons who murdered one Webber in the city of Sacramento. Petitioner arrested the murderer of Webber in tbe city and county of San Francisco, and furnished witnesses and evidence upon which a conviction was subsequently had. By right of these facts he now claims the reward of one thousand dollars.
The governor of the state offered this reward by virtue of the authority found in section 1547 of the Penal Code, and that section declares:
“The governor may offer a reward not exceeding one thousand dollars, payable out of the general fund, for the apprehension:
“1.....2. Of any person who has committed or is charged with the commission of an offense punishable with death.”
It will be observed that the power of the governor is limited to offering rewards for the apprehension of certain criminals. For that reason we attach no importance to the allegations of the petition wherein it is declared that petitioner furnished the evidence upon which the murderer was convicted. It follows from what has already been said that the only question here presented is: May a police officer of the city and county of San Francisco, who arrests a murderer for a crime committed in another county of the state, and without a warrant, recover a reward offered by the state for the arrest of such murderer? The answer to this question is largely dependent upon the conclusion to be reached from two other propositions of law, namely: Was it the official duty of this captain of police to make the arrest of the criminal; and, if so, is it against sound public policy to allow such an officer to receive a reward for the performance ofJiis duty?
The last legal proposition stated must be declared in the affirmative. ' The courts, both in this country and England, are practically unanimous in declaring that a public officer working for a fixed compensation, or whose fees are prescribed bj law, cannot demand or contract for a reward for services rendered in the line or scope of his official duty. In the well-considered case, Matter of Russell, 51 Conn. 577, 50 Am. Rep. 55, it is said: “And no case can be found—at least I have not been able to find any—-in which the claim of a public officer to receive a reward for services rendered in the performance of his official duties has received the sanction of a court of last resort in this country or in England.” A deputy sheriff making an arrest in the line of his duty is not entitled to a reward offered for such arrest. (Stamper v. Temple, 6 Humph. 113; 44 Am. Dec. 296.)
Mo case has been died, and we know of none, where an appellate court has declared the existence in principle of any well-defined distinction as to public officers, in cases where rewards
It is insisted that when the state, by its legislature, authorized the governor to offer a reward for the apprehension of certain criminals, such reward is offered to all persons, and necessarily includes sheriffs, police officers, etc; and that therefore the state by such action has declared its own public policy as to rewards for the apprehension of criminals. The state has a right to declare what is sound public policy upon this question, however variant its views may be with elementary principles declared by the decisions of courts of other states and countries. And, if this state had authorized the governor in terms to offer this reward to sheriffs and other peace officers, the courts would have been bound to sustain such a law, as far as any question of public policy was concerned. But the statute here goes to no such lengths. If the state through its governor possessed the inherent power to offer this reward, we would hold in line with the many decisions cited that peace officers could not recover. Tet .it would seem that the legislature by this statute only attempted to place in the hands of the governor a power whieh probably did not inherently rest in him, namely, the power of offering rewards payable out of the state treasury for the apprehension of criminals. The grant of a mere power to the governor to offer a reward does not necessarily carry with it any implied power to offer the reward to any and all persons. To hold that the legislature intended these rewards to be recovered by peace officers is to hold that such body intended to declare a certain course of action sound public policy in this state which has been declared unsound and vicious public policy in every other jurisdiction. While the state legislature had the power to take this radical and unusual position, we will not hold that
Was it the official duty of the petitioner to arrest the murderer? There can be but one answer to this question. Section 817 of the Penal Code of this state declares a police officer of a city to be a peace officer. The arrest in this case was made without a warrant, but such fact in no degree changes the legal complexion of the merits of the litigation. Section 836 of the Penal Code declares that a peace officer may make an arrest in obedience to a warrant delivered to him, or may without a warrant arrest a person:
In other words, it is the duty of the peace officer to make-arrests under any of the foregoing conditions. It certainly would be his duty to make an arrest where a public offense was committed in his presence. It likewise would surely be his duty to-make an arrest where he held a valid warrant ordering the arrest. Yet under the statute quoted it is no more his duty to make arrests under such circumstances than it is when a felony has been committed, and he has reasonable cause for believing a certain person to have committed it. Here of necessity it must be assumed that petitioner had reasonable cause for making the arrest. It will not be assumed that he made it without good cause, and, if he had good cause for the arrest, it was his duty to make it. It cannot he contended for a moment hut that a police officer would be grossly neglectful of his duty if the opportunity presented itself and he failed to arrest a person, having reasonable cause to believe such person to be a murderer. Again, the consolidation act of the. city and county of San Francisco, section 26, declares: “Police officers in subjection to the orders of the respective captains, and all under the general direction of the chief of police, shall be prompt and vigilant in the detection of crime, the arrest of public offenders, the suppression of all riots, affrays, duels and disturbance of the peace,” etc. Under this broad declaration of the duties of police officers, it clearly devolved upon petitioner to make this arrest. Here was a public offender, a man who had committed a horrible crime. The petitioner was a police- officer and knew the fact. Under such circumstances it was beyond doubt his duty to be prompt and vigilant in taking such an offender into custody.
The aforesaid section of the consolidation act further provides: “Neither the chief of police, captains or any other officer of police shall .... receive any present or reward for official services rendered or to be rendered, unless with the knowledge and approbation of a majority of the police commissioners.” Whether
For the foregong reasons the judgment is reversed and the cause remanded.
Temple, J., Van Fleet, J., Harrison, J., and Henshaw, J., concurred.
Dissenting Opinion
I dissent. The authorities are not all to the point that an offer of reward, even by a private person to an officer, is void because against public policy; there are authorities the other way—some of which are recited in the respondent’s brief, (living full force to the reasons upon which the cases cited in the prevailing opinion were decided, I am still inclined to think that the better doctrine is stated in City Bank v. Bangs, 2 Edw. Ch. 97, where, speaking of an offer of reward, it is said: “The object is to awaken public attention to the subject, excite vigilance, and call forth extraordinary individual efforts for the accomplishment of the end proposed to be gained. All who choose to engage in it are at liberty to do so, and he who succeeds becomes entitled to the reward upon the ground of his superior vigilance or sagacity, or of his having used greater exertions or encountered dangers wdiich others were disinclined or not in the situation to hazard. When, therefore, we view the objects of reward offered thus publicly in their true light, a participation in their benefits, or in the receipt of them, cannot be considered wholly incompatible with the duties of public officers or against the policy of the law.” When a policeman or sheriff is informed that a horrible murder had been committed in a remote county and that the perpetrator is at large, it may be said that the officer is under some general official obligation to see if the offender is lurking in his city or county; but I cannot see how public policy is outraged by an offer which
In my opinion the judgment should be affirmed.