ment would be necessary to constitute an offence under the statute. It does not appear by the evidence whether the team in question was furnished by the defendant for his own convenience in reaching points where he was called in the discharge of official duties, or whether the team was used by the county in prosecuting public work; but, however used or furnished, the fact stands out that neither furnishing the team, nor its use, nor demanding or receiving compensation therefor, is or can be an official act. If it were, the non-performance of such official act would be criminal if done under the circumstances stated in § 6304, which section reads as follows: “Every executive officer who asks or receives any emolument, gratuity, or reward, or any promise of any emolument, gratuity or reward for omitting or deferring the performance of any official duty, is guilty of a misdemeanor.” It follows from the views above expressed that the charge of the trial court was error, and that such error was highly prejudicial to the defendant.
The decision may likewise rest upon other grounds. In this case it is not alleged or claimed that the defendant asked for or received any emolument, gratuity, or reward as an inducement to the performance of an official act. This, we think, is essential. Section 6303, as well as the chapter in which it is found, was taken almost literally from the Code of California, and the statute has been construed by the supreme court of that state in People v. Kalloch, 60 Cal. 116. Speaking of this statute, the court says: “The object of the statute is to prevent improper influences being brought to bear upon official action, and, the indictment failing to allege that the promise was an inducement to the act, is fatally defective.” We think § 6303 was not in tended to define or punish the offense of claiming or receiving extortionate fees. The reverse is fairly implied from the clause, “excepting such as may be authorized by law.” Money demanded “for doing an official act,” which money is not authorized by law to be paid for doing the act, cannot be a demand for a fee, and can only be a demand for a bonus, “gratuity,” or “reward,” different from and in excess of fees. Section 6300 was framed to define and punish the heinous offense of bribery when committed by officers who, in the exercise of official dis-
