gentlemen, if you find, under the evidence in this case, beyond a reasonable doubt, that this defendant made a charge, and received compensation accordingly from the county, for the use of his team while he was engaged in the performance of his official duty, it is your duty to return a verdict of guilty.” Held error.
4. Same; Same; Lumping Items in Bill.
Applying the law governing the compensation allowed commissioners to the several items of the bill above set out, it appears, upon the face of each item, that a portion thereof is for official services, viz., “committee work,” and another portion of each item is a claim (whether legal or not) against the county for strictly private and non-official services, to-wit, a claim for the use of a team fora specified number of days. Deducting the legal per diem for official services due B., the balance of the claim is, on its face, and in fact, for the use of a team a specified number of days. Held, that the claim for the use of the team, as asked for and received by B., does not constitute an offense, under § 6303, supra. Such a claim is not a demand by an executive officer for “any emolument, gratuity, or reward” for “doing any official act.” The act of furnishing a team is not an act enjoined by law, and hence is not an official act; nor does lumping a private claim for the use of a team with a claim for fees change the essential character of the claim. Such a claim is, and must remain, a mere demand of payment for a strictly private and non-official service.
5. Same; Same; Section 6303 Compiled Laws.
It is conceded that these claims against the county were not asked for by B. as an incentive or inducement to the performance of any official act. Held, that this fact is also fatal to the case of the prosecution. We hold that § 6303 was intended to provide for cases not covered by § 6300, viz., for cases where the bribe is not asked for or received to influence official discretion, but is asked for and received as an incentive or inducement to do an official act which is lawful in itself, and does not involve the exercise of official discretion in the sense intended in § 6300. Section 6303 was not, in our opinion, intended to include the offense of demanding and receiving extortionate fees where the officer asks for such fees as legal fees.
6. Is County Liable to Commissioner for Hire of His Team?
We are concerned in this case only with the criminal aspects, and do not pass upon the validity of the claim for the use of the team as a civil liability.
(Opinion Filed November 29, 1890.)
ERROR to district court, Richland county; Hon. Charles F. Templeton, judge.
Messrs. McCumber & Bogart for plaintiff, in error: Section 6303 of the Compiled Laws relates to the taking of emolument, gratuity or reward in the nature of a bribe, and does not reach
