Booker v. Stevenson ( 1871 )

JUDGE LINDSAY

delivered the opinion oe the court.

This was a proceeding to obtain a writ of mandamus to compel the governor to allow an account against the commonwealth in favor of appellant Booker for his services, and also for the fees and necessary expenses incurred by him, as agent of the state in reclaiming a fugitive from justice, under a requisition made upon the executive of Missouri by the governor of this state.

■The application was resisted upon the ground that Booker agreed in writing, at the time the requisition was issued (which was done upon his application), that the commonwealth should not be held liable for any part of the expenses incurred in the reclamation of the fugitive. We do not deem it necessary, however, upon this appeal to determine the sufficiency of that defense. ^*

By an act approved February 17, 1858 (1 Stanton’s Revised Statutes, 559), tbe agents of tbe state appointed for such purposes are allowed to receive as compensation for their services mileage at the rate of twelve and a half cents per mile for the distance they may be required to travel, and such fees and necessary expenses as they may have to expend in reclaiming and transporting the fugitive. Their claims are to be allowed by the governor, and paid by the treasurer upon the warrant of the auditor. 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.

In the account of the appellant one of the items is for “fees paid assistant secretary of state of Kentucky for commission and requisition, four dollars.” We have been unable to find any statute authorizing the assistant secretary of state to exact from the agents of the state any such fees, and the appellant could not by paying such to that officer create a charge to the amount of the same in his favor against the commonwealth. The fees authorized by the act to be paid by the agent are such as can be lawfully collected by the officers of the state in which the fugitive may be arrested. It follows therefore, as the entire claim presented by the appellant was not authorized by law to be paid, that the governor properly refused to allow it.

Wherefore the judgment of the court below dismissing the petition for the mandamus must be affirmed.

* This question is decided against the 'claim of the agent of the state in the response of the court to the petition for a rehearing, whioh follows immediately after this opinion. — Reporter.