105 Ky. 52 | Ky. Ct. App. | 1898
Lead Opinion
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
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
Dissenting Opinion
dissents from that part of the opinion which holds that the agent is not entitled to mileage unless he reclaimes the fugitive. Chief Justice Lewis, also dissents. ■
Although the agent of the Commonwealth did not succeed in reclaiming and transporting the fugitive, he is entitled to receive as compensation for his services at the rate of six cents per mile for the distance traveled to and from the jail of the county designated in the proclamation to the place where the fugitive was arrested, the distance to be computed by the route most usually traveled, as a different condition was not contained in his commission. It should be supposed that, when the Governor commissions an agent to reclaim and transport a fugitive from justice, he is of the opinion that the fugitive has committed a public offense for which he should be prosecuted. The presumption should be indulged that he would not select any one except a trustworthy person to execute such a commission. If there are any reasons why he thinks the agent which he appoints should not receive the compensation provided by the statute, he should insert in the commission a condition to that
It will result from the construction which the court gives the statute that the Governor will not be able to get any one to act as his agent, except one who has a vengeance to satiate or a debt to collect by a criminal process.
The Governor called upon' might refuse to surrender the prisoner or the courts of the State to which he had fled might hold that he could not be transported, still, under the opinion of the court, the agent would incur the expense of the trip without any hope of compelling the Commonwealth to pay it, notwithstanding he did his full duty to execute the commission given him. Again, if the conclusion- of the court be correct, the agent might return with the fugitive to the city wherein the jail is situated, and, if he was overpowered by a mob and his prisoner rescued before delivering him to the custody of the jailer, he is not entitled to the compensation provided by the statute. This illustration alone shows the interpretation which the court gives the statute is reductio ad abswrdum. The conclusion of the court is not forced by the letter of the statute, and the reason
It is suggested that the door of fraud is opened by permitting the payment of mileage when the fugitive is not actually reclaimed, and an analogy is suggested to other cases under the statute when fees are allowed for service of process or arrest of offenders. The language of the statute in such cases is much more definite than in the case at bar; and, in view of that fact alone (if there was no other reason), we would reach the conclusion that when the Governor, under the authority vested in him, employs an agent, and does not exercise the power given him to insert a different condition in the commission of the agent, it is his intent, as well as the legislative intent, that the agent shall receive the statutory mileage. This case is not analogous to the cases wherein sheriffs and other such ministerial officers are not entitled to fees unless the process is served or a warrant of arrest executed. Such officers have a variety of duties to perform for which fees are allowed. They are required to perform services for which their compensation depends upon the success which may attend their effort. The lawmaking power, in an endeavor to give such officers suitable compensation, by the way of fees, for discharging the duties of their respective offices, says how much they are to receive and the conditions upon which they are entitled to it. In some cases the fees received are munificent, while in
Rehearing
delivered the response to the petition for a rehearing:
The section of the Kentucky statutes quoted in the opinion seems to have been made to carry into effect the federal statute of 1793, passed pursuant to the Constitution of the United States, for the surrender of fugitives from justice, and now embraced in section 5278 of the Revised Statutes of the United States, which reads as follows: “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of
