Kick v. Merry

23 Mo. 72

• Court: Supreme Court of Missouri
• Decided: March 15, 1856
• Status: Published

Opinion

Scott, Judge,

delivered the opinion of the court.

This action can not be maintained. It is a principle of the common law that an officer ought not to take money for doing his duty. Hawkins says, “ if once it should be allowed that promises to an officer, to pay more for his services than the law allows, could sustain an action, the people would quickly be given to understand how kindly they would be taken, and happy would that man be who could have his business well done without them.” (1 Hawk. ch. 68, § 4.) This is an ancient principle, and it has been steadily adhered to as being necessary to save the community from extortion and oppression. Once allow an officer to contract for extra compensation for the discharge of his duty, and bribery would become the means by which alone the laws could be executed. Chancellor Kent says that every seaman is bound, from the nature and terms of his contract, to do his duty in the service, to the utmost of his ability; and therefore, a promise made by a master, when the ship is in distress, to pay extra wages, as an inducement to extraordinary exertion, is illegal and void. (3 Kent’s Com. 185.) In the case of Hatch v. Mann, (15 Wend. 44,) the court of errors in New York held, that a constable or other ministerial officer, the fees for whose official services are prescribed by law, can not maintain an action on a promise of extra compensation for extra services, although services beyond what could legally be required are rendered by the officer. In Mitchell v. Vance, (5 Mon. 529,) the court maintained that a bond executed for the purpose of inducing a constable to do that which, by the duties of his office, it was incumbent upon him to do and as such, was not binding. In the case of Calligan v. Hallet, (1 Caine’s Reps.) it was held, that a contract with a pilot to assist a vessel in distress, for a certain sum to be paid, is absolutely void. Tbe court observed : “it being made tbe duty of tbe pilot to assist tbe defendant’s vessel, it was oppression in them to exact tbe stipulation in question. It would lead to abuses of tbe most serious nature, if such contracts, formed on such considerations, were held to be legal.” Tbe case of Gilmore v. Lewis, (12 Ohio, 281,) bolds : “ That it is an indictable of-fence, in public officers, to exact and receive any thing more, 'for tbe performance of their legal duty, than tbe fees allowed by statute. A promise to pay them extra compensation is absolutely void. A reward offered for tbe apprehension of a thief, and tbe recovery of tbe money stolen, can not be claimed by a constable who arrests tbe thief by virtue of a warrant delivered to him for that purpose.” In tbe case of Pool v. The City of Boston, the court decided that “ a watchman of the city of Boston, who, while in the discharge of bis duty, as such, discovers a person setting fire to a building, and prosecutes him to conviction, is not entitled to claim a reward offered by tbe city government for tbe detection and conviction of an incendiary.

Tbe ordinance regulating the police department of tbe city of St. Louis, section 21, prescribes that “ tbe members of the department shall not engage in any business which may withdraw their attention from their police service or unfit them for tbe duties required of them.” The plaintiff was captain of the day guard. It is made the duty of the privates of the police department to obey punctually, and to the best of their ability, the orders of the captains of the city guard. They are required, to the best of their ability, to preserve order, peace and quiet throughout the city. The members of the city guard may enter any house, enclosure or other place, where a breach of the peace or crime, or breach of ordinance, has been or is being committed, and arrest the offender. The arrest, in this ease, was lawful, without a warrant. (State v. Roberts, 15 Mo. 28.) The arrest was lawful by the common law, without warrant. Under the circumstances, the officer has no right to insist that he acted as an individual in his private capacity. The case falls within the mischief of the rule of the common law which prohibits an officer from taking a reward as an inducement to do his duty. He received a stated salary for his services. The services rendered were within the duties of his office. All his energies had been devoted to the service of the city. Under such circumstances, to permit an officer to stipulate for extra compensation for services to which the public was entitled, would lead to great corruption and oppression in office. It would follow that whenever a crime was committed, instead of speedy efforts for the arrest of the offender, there would be a holding back, in the hope that there would be a reward given for his apprehension. If once a habit of taking a reward is introduced, nothing will be done unless the service is previously purchased by extra pay. The other judges concurring, the judgment will be reversed.