Dean v. Board of County Commissioners , 50 Minn. 232 ( 1892 )

Mitchell, J.

Plaintiff brought this action to recover fees claimed to be due him as constable for serving a warrant in a criminal action, issued by a justice of the peace; also for serving venires on jurors and subpoenas on witnesses for the state in the same action. The court below held that he could not recover any part of his fees, because “the warrant described no oSense, and all proceedings thereunder were therefore void.”

The stipulated facts show that the warrant (which is required to contain the substance of the complaint) stated no offense. It was therefore void on its face, and no officer was either authorized or required to execute it, and consequently could not collect any fees for doing so. This would apply to all fees for transporting, guarding, and boarding the defendant after arrest.

But it is not claimed that the subpoenas for witnesses and the ve-nires for jurors were not regular on their face. They were issued in the ordinary course of justice, from a court having jurisdiction to issue such process. Such being the case, it was the plaintiff’s bounden •duty to serve them regardless of any knowledge, or supposed knowledge, of his own, derived from any source whatever, as to the invalidity of the warrant. The processes themselves were his only guide. If a process is regular in its frame, and is issued by a court, body, or officer having jurisdiction to issue such process, the duty of' •a ministerial officer is to serve it. Obedience is the sum of his duty. It is easy to see what mischief to the public and hardship to the officer would result from either permitting or requiring him to act on ■any knowledge of his own outside the face of the writ or process ■committed to him for service. While the cases have not been entirely harmonious on this point, yet the rule is now settled as we have stated it by the great weight of authority, and in accordance, as we think, with both principle and public policy. See Throop, Pub. Off. § 759 et seq.; also note to Savacool v. Boughton, 21 Amer. Dec. 201 et seq.

Hence the plaintiff was entitled to his fees for serving the subpoenas and venires amounting to $18.20, with interest from the commencement of his action.

The right of the plaintiff to collect his fees from the county is not affected by the fact that the justice, in pursuance of 1878 G. S. ch. 65, § 157, certified that the complaint was willful and malicious, and without probable cause, and entered judgment against the complainant for the costs. That section was intended merely to enable the public to reimburse themselves for costs incurred in the prosecution which otherwise would, under 1878 G. S. ch. 70, § 44, be payable out of the county treasury without recourse ón any one for indemnity.

(Opinion publis ed 52 N. W. Rep. 650.)

Cause remanded, with directions to the district court to enter judgment in favor of the plaintiff in accordance with this opinion.