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decided: March 6, 1899.



Author: White

[ 173 U.S. Page 382]

 MR. JUSTICE WHITE delivered the opinion of the court.

The court below held that the plaintiffs were entitled to recover the sum by them claimed, 32 C. Cl. 123, and the United States prosecutes this appeal. The origin of the controversy and the facts upon which the legal conclusion of the court was rested are these: The two plaintiffs were, one a regular and the other a specially appointed deputy marshal. They claimed five hundred dollars, the sum of a reward offered by the Attorney General for the arrest and conviction of one Asa McNeil, who was accused of having been concerned in the killing of one or more revenue officers at a village in Holmes County, Florida. McNeil was arrested by the officers in question, tried and convicted. This suit was brought in consequence of a refusal to pay the reward. The act of March 3, 1891, c. 542, 26 Stat. 948, 985, "making appropriations for sundry civil expenses of the government for the fiscal year ending June the thirtieth, eighteen hundred and ninety-two, and for other purposes," under the heading "Miscellaneous," contained the following appropriation: "Prosecution of crimes; for the detection and prosecution of crimes against the United States, preliminary to indictment . . . under the direction of the Attorney General, . . . thirty-five thousand dollars." Under the authority thus conferred the Attorney General, on July 31, 1891, addressed a letter to the marshal of the Northern District of Florida, saying: "Your letter of July 24 is received. You are authorized to offer a reward of five hundred dollars (500) for the arrest and delivery to your, at Jacksonville, of Asa McNeil, chief of conspirators, who fired upon revenue deputies at Bonifay, Holmes County, last fall, this reward

[ 173 U.S. Page 383]

     to be paid upon conviction of said McNeil." A capias for the arrest of McNeil was executed by the deputies in question on the 11th day of July, 1892, the court below finding that the arrest was due to their exertions.

Beyond doubt the appropriation empowered the Attorney General to make the offer of reward, and hence in doing so he exercised a lawful discretion vested in him by Congress. It is also clear that the offer of the reward made by the Attorney General was broad enough to embrace an arrest made by the deputies in question. If then the right to recover is to be tested by the provisions of the statute and by the language of the offer of reward, the judgment below was correctly rendered. The United States, however, relies for reversal solely on two propositions, which it is argued are both well founded. First. That as at common law it was against public policy to allow an officer to receive a reward for the performance of a duty which he was required by law to perform, therefore the statute conferring power on the Attorney General and the offer made by him in virtue of the discretion in him vested, should be so construed as to exclude the right of the deputies in question to recover, since as deputy marshals an obligation was upon them to make the arrest without regard to the reward offered. Second. That even although it be conceded that the officers in question were otherwise entitled to recover the reward, they were without capacity to do so because of the general statutory provision forbidding "officers in any branch of the public service or any other person whose salary, pay or emoluments are fixed by law or regulations," from receiving "any additional pay, extra allowance or compensation in any form whatever," (Rev. Stat. ยง 1765,) and because of the further provision "that no civil officer of the government shall hereafter receive any compensation or perquisites, directly or indirectly, from the Treasury or property of the United States beyond his salary or compensation allowed by law. . . ." Act of June 20, 1874, c. 328, 18 Stat. 85, 109. The first of these contentions amounts simply to saying that though the act of Congress vested the amplest discretion on the subject

[ 173 U.S. Page 384]

     in the Attorney General, and although that discretion was by him exercised without qualification or restriction, it becomes a matter of judicial duty in construing the statute and in interpreting the authority exercised under it to disregard both the obvious meaning of the statute and the general language of the authority exercised under it by reading into the statute a qualification which it does not contain and by inserting in the offer of reward a restriction not mentioned in it, the argument being that this should be done under the assumption that it is within the province of a court to disregard a statute upon the theory that the power which it confers is contrary to public policy. It cannot be doubted that in exercising the powers conferred on him by the statute, the Attorney General could at his discretion have confined the reward offered by him to particular classes of persons. To invoke, however, judicial authority to insert such restriction in the offer of reward when it is not there found, is to ask the judicial power to exert a discretion not vested in it, but which has been lodged by the lawmaking power in a different branch of the Government. Aside from these considerations the contention as to the existence of a supposed public policy, as applied to the question in hand, is without foundation in reason and wanting in support of authority.

It is undoubted that both in England and in this country it has been held that it is contrary to public policy to enforce in a court of law, in favor of a public officer, whose duty by virtue of his employment required the doing of a particular act, any agreement or contract made by the officer with a private individual, stipulating that the officer should receive an extra compensation or reward for the doing of such act. An agreement of this character was considered at common law to be a species of quasi extortion, and partaking of the character of a bribe. Bridge v. Cage, Cro. Jac. 103; Badow v. Salter, Sir Wm. Jones, 65; Stotesbury v. Smith, 2 Burr. 924; Hatch v. Mann, 15 Wend. 44; Gillmore v. Lewis, 12 Ohio, 281; Stacy v. State Bank of Illinois, 4 Scam. 91; Davies v. Burns, 5 Allen, 349; Brown v. Godfrey, 33 Vt. 120; Morrell v. Quarles, 35 Ala. 544; Day v. Putnam Ins. Co., 16

[ 173 U.S. Page 385]

     Minn. 408, 414; Hayden v. Souger, 56 Ind. 42; Matter of Russell's Application, 51 Conn. 577; Ring v. Devlin, 68 Wis. 384; St. Louis &c. Railway v. Grafton, 51 Ark. 504. The broad difference between the right of an officer to take from a private individual a reward or compensation for the performance of his official duty, and the capacity of such officer to receive a reward expressly authorized by competent legislative authority and sanctioned by the executive officer to whom the legislative power has delegated ample discretion to offer the reward, is too obvious to require anything but statement.

Nor is there anything in the case of Pool v. Boston, 5 Cush. 219, tending to obscure the difference which exists between the offer of a reward by competent legislative and executive authority and an offer by one not having the legal capacity to do so. In that case, the plaintiff, a watchman in the employ of the city of Boston, while patrolling the streets, in the ordinary performance of his duty, discovered and apprehended an incendiary, who was subsequently convicted. The action was brought to recover the amount of a reward which the city government had offered "for the detection and conviction of any incendiaries" who had set fire to any building in the city, or might do so, within a given period. Solely upon the authority of decisions denying the right of a public officer to recover from a private individual a reward or extra compensation for the performance of a duty owing to the party sought to be charged, it was held that there could be no recovery. The city government of Boston, acting in its official capacity, and in the exercise of the general powers vested in cities and towns by the law of Massachusetts, doubtless had authority to offer rewards for the detection and conviction of criminals. Freeman v. Boston, 5 Met. 56; Crawshaw v. Roxbury, 7 Gray, 374. But no act of the ...

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