188 Mo. 501 | Mo. | 1905
This cause comes here by virtue of article 6 of the State Constitution as amended in 1884. [See sec. 5 of said amendment.]
Smith on the 14th day of July, 1901, was a member of the police force of Council Bluffs, Iowa, and there is evidence indicating that he was also at the time engaged in the detective business along lines not covered by his official duties as such policeman. On the 3d day of July, 1901, A. D. Paxton was murdered in Vernon county, Missouri, by one. Alva Johnson, who fled the country and became a fugitive from justice. At some time undisclosed by the record, but between said date and the 15th of July, the State of Missouri offered a reward for his capture. On the 15th day of July, 1901, appellant county through its county court offered a similar reward in the following terms:
“The county court of Vernon county, Missouri, hereby offers a reward of $100 for the apprehension and conviction of the murderer of A. D. Paxton, which occurred on July 3, 1901. ’ ’
This offer was published by being spread on record. On the day before this offer, to-wit, on Sunday, the 14th day of July, Smith became aware of the receipt of a letter for Alva Johnson at the postoffice at Council Bluffs. The record is silent as to how he became aware of the fact that a murder had been committed in Vernon county, or that there was any ground for connecting J ohnson with the commission of that crime. Johnson, it seems, had sent to the Council Bluffs postoffice by a messenger for his mail, and Smith learned of his whereabouts at a distant point in the county by the inquiries and disclosures of the messenger. Armed with this information, on his own initiative, he went fourteen miles into the country, found Johnson on a farm, took him into custody on suspicion (without a warrant so far as the record discloses) and caused him to be confined in the city jail at Council Bluffs and held pending inquiry. For some cause not disclosed, on
The record is silent as to the date Smith became aware that the county, as well as the State, had offered a reward. It is certain the Yernon county sheriff, though he knew of the State reward prior to his Iowa trip, did not, know of the county reward until after his return to Yernon county with Johnson, and therefore could not have disclosed the lattejr fact to Smith when in Iowa, and there is nothing in the récord showing that Smith knew of the reward in question until sometime after he turned over his prisoner. Smith claimed, and was paid, the State reward. The county court refused payment. On such refusal Smith sued and, on proof of facts above outlined, the court below gave judgment for him, the county appealing.
At the trial plaintiff asked the court to declare the law to be that on the facts proved he was. entitled to
In this court appellant insists tbe cause should be reversed because: (1) The evidence failed to show that respondent had complied with the conditions of the reward offered by the county; (2) because plaintiff was a police officer at the time and was not entitled to a reward for the performance of his duty; and (3) because the apprehension of Johnson was prior to the offer, without a knowledge, and not made on the faith of the reward by the county. Of these in their order.
I. To be entitled to recovery, one claiming a reward for the return of lost or stolen goods, or the mere apprehension, or the apprehension and conviction of a criminal, or for information leading to either, must establish his substantial compliance with all the conditions of the offer of reward (Lovejoy v. Railroad, 53 Mo. App. 386, and cases cited; Shuey v. United States, 92 U. S. 73; Ralls County v. Stephens, 104 Mo. App. 115); but conceding the foregoing fundamental proposition, there would seem to be no merit in appellant’s contention, for the reasons following: the statute authorizing a county court to offer and pay a reward reads as follows:
Sec. 2474, R. S. 1899: “Whenever the county court of any county in this State,' or any two judges thereof in vacation, shall be satisfied that any felony has been committed in said county, such court or judges may, at their discretion, offer a standing reward of not exceeding five hundred dollars for the apprehension and arrest of the person or persons committing the same, which reward shall be paid out of the county treasury; but in no instance shall any reward, or any part thereof, be paid to any person who shall be entitled thereto until final conviction of the defendant.”
Starting out with the assumptions (1) that the county court had no power to offer a reward for the
When Vernon county offered a reward, as it did, “for the apprehension and conviction” of the murderer of A. D. Paxton, it is not fair to conclude that the word “conviction” used in the offer, was used in any other
Did respondent comply with the terms of such offer, excluding for the moment his acting on the faith thereof? We think he did. It is undisputed that he apprehended the murderer unaided, on his own initiative, at his own expense and hazard, and put him in the hands of justice. It is undisputed that he took proper interest in the prosecution, that he attended the trial In a distant. State, where he was under no legal obligation to go and where his attendance could not be obtained by compulsory process, that he contributed to the conviction by furnishing all the facts within his knowledge as a witness, and that a final conviction resulted. .
The contention of appellant that Smith was paid his witness fees is of no significance. Whether these fees amounted to his outlay, we know not, nor does it matter. There is no provision of law to the effect that a reward-claimant may not, nor does it at first blush seem contra bonos mores that he may claim and be paid witness fees without thereby militating against his right to an offered reward. The statute offers his fees, the statute likewise provides for the reward, both offers spring from the same source, are of equal dignity, are not inconsistent, and why should they not be simultaneously operative ?
There is a class of cases where rewards are offered by private individuals for the conviction of crim
It results from these views that appellant’s first contention,' to-wit, that respondent did not comply with the terms of the offer of reward, must be disallowed.
II. Does respondent’s official position defeat recovery? At common law it was uniformly held that a promise to pay an extra-statutory compensation to a public officer for thé performance of his legal duty could not be enforced. Such contract was void as against public policy. Some adjudications put it this way: actions founded on promises for extra-statutory compensations are scandalous and shameful, and officers on whom the law casts a duty to ferret out crime, hunt down the offenders and bring them to public justice, must be content with legal fees — seasoned, possibly, by a dash of sentimental satisfaction arising from the contemplation of the fact that they have done the State some service; by other courts such contracts have been put on the foot of oppression and extortion. Serjeant Hawkins, in his Pleas of the Crown (1 Hawkins’ P. C., chap. 68, sec. 4), states his views as follows:
“Also it having been found by experience, that generally it is vain to expect that any officers who de
The reasons thus aptly put by Hawkins’ are soothing to the legal mind, have been adopted by standard text-writers,, and commanded an indorsement from the strong pen of Judge Scott (Kick v. Merry, 23 Mo. 72), and the rule itself, to promote health-in the body politic, ought to be sustained in undiminished vigor. Nevertheless, in applying it, discrimination should be used to fit it only to a case within the common sense of the thing and where the benefit will be advanced and the mischief retarded. The mischief struck at is obvious ; and a public officer, under a bounden oath to perform a certain official duty, for the performance of which a legal fee or salary is provided by law, is the character of person within the spirit and letter of the rule.
In this case, not only does the evidence indicate that Smith was carrying on the business of a detective on his own hook, as well as performing the duties of policeman of Council Bluffs, but even if the service performed by him be referred solely to his character as a policeman, what present, legal duty devolved upon him as a municipal officer of Council Bluffs to ferret
What pay in legal fees is vouchsafed by the statutes of Iowa or the ordinances, of Council Bluffs for the performance of such extraordinary service as Smith rendered under this record? None is contended for. Those services were prompt, intelligent and so peculiar as to bespeak recognition and bounty, if an award of bounty can be made without doing violence to recognized legal principles; for instance, without a warrant, on mere suspicion, Johnson was arrested and held in custody and, without requisition papers, through the aid of Smith he was brought from Iowa to this State. There was a hazard here, had the suspicion been unfounded or the result fallen short of a conviction, for vexatious suits, and we cannot conceive how this personal hazard in the arrest and the expenses incurred in and about this service arose as his due to the commonwealth of Missouri, or how they came within the mandate of his official oath, or within the solatium of his official salary or the fees provided by his master, the State of Iowa and the municipality of Council Bluffs.
So that, not coming within the reason of the rule, we are unwilling to hold that the mere fact of his being a policeman in a foreign jurisdiction, should deny him the right to claim the reward in question. While there are cases out of line with these views, yet our holding is believed to be sustained by the greater weight of the well-reasoned-out cases. [Cornwell v. Railroad, 100 Mo. App. 258; 24 Am. and Eng. Ency. Law (2 Ed.), 953, and cases cited.] And by the books
ITT. This brings ns to tbe consideration of the last and the most serious question in the case, viz., the offer of a reward by Yernon county was made the day after the apprehension of Johnson, was made without-the knowledge by respondent of, and, so far as shown by the record, without reliance on the reward sued for. On such state of facts appellant bases the insistence that there can be no recovery.
The cases are in hopeless conflict on this question. On the one side is a line holding to the theory that knowledge of the offer of a reward is not necessary. The reasoning of this line of cases is felicitously expressed in Auditor v. Ballard, 72 Ky. 572, thus: “But it is said that the appellee is not entitled to the reward because he did not know at the time he arrested the fugitive and delivered him to the jailer that one had been offered, and therefore the services could not have been performed in consideration of the reward. If the offer was made in good faith, why should the State inquire whether appellee knew that it had been made? Would the benefit to the State be diminished, by a discovery of the fact that the appellee, instead of acting from mercenary motives, had been actuated solely by a desire to prevent the escape of fugitive and to bring a felon to trial? And is it not well that all may know that whoever in the community has it in his power to prevent the final escape of a fugitive from justice, and does prevent it, not only performs a virtuous service, but will entitle himself to such reward as may be offered therefor?” To the same effect are Dawkins v. Sappington, 26 Ind. 199; Eagle v. Smith, 4 Houston (Del.) 293; Drummond v. United States, 35 Ct. Cl. 356; Russell v. Stewart, 44 Vt. 170. This is also the doctrine of the English courts. [Williams v. Carwardine, 4 Barn. and Ad. 621; Neville v. Kelly, 104 E. C. L. 740.]
On the other hand is a line of cases holding that
The question in this State is somewhat open, but the dicta of our courts show the trend of the Missouri judicial mind to be towards the latter view. For example, in Cummings v. Clinton County, 181 Mo. l. c. 167, Burgess, J., comments on plaintiff’s knowledge of the offer of the reward and his performance of service upon the faith of the offer.
Ralls County v. Stephens, 104 Mo. App. 115, was a case in which the reward was paid into court' and the contest was between rival claimants, Stephens, Carter and Testerman, interpleaders. The reward being adjudged to Stephens, Testerman acquiesced and Carter
In Sanderson v. Lane, 43 Mo. App. 158, S. bought a stolen horse; L., a city marshal, knowing of a reward, went to the house of S. in his'absence, informed the brother of S. that the horse was stolen, pointed it out and said that he had come for it, paid $4 for the keeping of the horse, took it away, delivered it to the owner and received the reward. Neither S. nor his brother knew of the offer of reward. S. sued L. for the reward, recovered below and L. appealed. The judgment was reversed upon the ground that plaintiff neither knew of the reward, nor did he return the horse.
It would serve no useful purpose to seek to disturb the reasoning of the foregoing cases, which seem to be in line with the better American doctrine, although if the question was entirely res integra we might be inclined to adopt the persuasive reasoning of Auditor v. Ballard, supra.
"We lay no stress upon the mere fact that respondent made the arrest before the reward was offered, and this is so because it appears from the record that the prisoner was not delivered over until after the 15th of July, the date of the offer of the county reward. The State of Missouri was interested in a result and not in a bare arrest. The delivery of the prisoner was a necessary step for respondent to take before' his services,
It has not escaped us that respondent contends he “asked an officer of Vernon county at the time he performed the service, about the reward, showing clearly an intention to claim the reward if there was any for the services he performed.” Nor has it escaped us that respondent further contends “the agent of the county misinformed him in regard to the reward.” These contentions of respondent find no support in the testimony, and, since he was not called upon to testify, they may be an echo of facts existing dehors the record and which may be supplied at a retrial.
The petition is defective in not averring a knowledge of and a reliance upon the reward as a consideration for the services of respondent. The proof is wanting upon this essential element in the calse. It is possible that on an amended petition and at a retrial the deficiency may be supplied.
The cause is accordingly reversed and remanded with leave to respondent to amend his petition, .if he see fit, and then to be proceeded with in accordance with the views of this court on the law, without either party being precluded on the facts.