Settle v. Sterling

• Decision Date: 01 January 1869
• Citation: 1 Idaho 259
• Parties: George F. Settle, Plaintiff, v. E. C. Sterling, Prison Commissioner, Defendant.
• Court: Idaho Supreme Court

1 Idaho 259

George F. Settle, Plaintiff, v. E. C. Sterling, Prison Commissioner, Defendant.

Supreme Court of Idaho

January 1, 1869

REQUISITION-AGENT-OFFICER.-The position of an agent named in a requisition to receive and return a fugitive from justice, is an office; and such officer is entitled to the fees and emoluments fixed by law for his services.

GOVERNOR-FEES OF AGENT.-The governor has a right to the appointment of an agent; but cannot fix any terms as to his fees.

AGREEMENT-AGENT-FEES.-Any agreement by an agent named in a requisition to take less or more than the fees allowed by law is illegal and void.

JUDGMENT rendered pro forma in the District Court of the Second Judicial District, Ada County, and adjourned into this court by consent of parties.

Frank Ganahl, for the Plaintiff. E. J. Curtis, for the Defendant.

MILLER J.,

delivered the opinion,

KELLY J., concurring, BOWERS, C. J., dissenting.

This case comes before us upon the consent of parties. The parties hereto, under section 336, Civil Practice Act, page 153, Laws of Idaho, first session, have, without action, agreed upon a case, and presented a submission thereof to the court below duly verified according to law by both their affidavits. The court below entered a judgment pro forma in favor of the defendant, and from that judgment, by consent of both parties, had in open court, this case comes before us. The case on the agreed statement and submission duly verified as aforesaid by the affidavits of both parties was argued in due course by counsel for both parties before a full bench, and afterward judgment thereon was duly entered by Justices Kelly and Miller (Bowers, C. J., being absent at court in Boise county), on the sixth day of March, 1869, in favor of the plaintiff, and directing a writ of mandate to issue, commanding the defendant to audit the account of plaintiff; which writ did issue on the same day and was obeyed by defendant.

The statement as submitted and sworn to by both parties, states as follows:

1. That in September, 1868, the grand jury of Alturas county duly presented and found by their indictment one John A. Andrews guilty of the crime of grand larceny.

2. That at that time the said John A. Andrews was a fugitive from justice, being then in the state of Indiana.

3. That the governor of Idaho duly issued his requisition upon the governor of Indiana for the body of said John A. Andrews, and duly appointed the said George F. Settle the agent for the territory to demand of the governor of Indiana

the said John A. Andrews to bring him to this territory in pursuance of said requisition.

4. That before issuing his said requisition and the appointment thereunder of said Settle, by the governor as aforesaid, he, the said governor, required of said Settle the execution by him of the paper hereto annexed.

5. That said Settle, in pursuance of said requisition, proceeded to Indiana, and did perform all his necessary duties under and by virtue of said requisition, and did make and file before the said Sterling, as prison commissioner, his account for his said services, duly verified according to law, and that said account is true, just, and correct.

6. That said account was so presented to and filed by said Sterling, as prison commissioner, on January 2, 1869, and the services rendered therein were so rendered by said Settle from the 22d of September, 1868, to the 25th of December, 1868, under said requisition.

7. That said Sterling, as prison commissioner, refused on the second day of January, 1869, to audit said account of said Settle, and still refuses to audit said account, on the ground and for the reason of the execution by him of the paper hereto annexed.

8. The said Settle asks for the peremptory writ of mandate of this court compelling said E. C. Sterling, as prison commissioner, to audit his account aforesaid against the territory. Signed, GEORGE F. SETTLE. E. C. STERLING. Territory of Idaho, county of Ada, ss.

George F. Settle and E. C. Sterling, being each duly sworn for himself, says that the foregoing statement of facts is true and correct; that the controversy is real and the proceeding in good faith to determine the rights of the parties thereto.

GEORGE F. SETTLE.

E. C. STERLING.

Subscribed and sworn to before me this sixteenth day of January, 1869.

SOL HASBROUCK,

Clerk district court, second judicial district, of Idaho Territory.

Boise City, Idaho Territory, September 24, 1868.

Whereas, a certain bill of indictment has been found against one John A. Andrews by the grand jury of Alturas county, Idaho territory, bearing date September 11, 1868, charging said Andrews with committing a felony, and

Whereas, said Andrews has fled this territory and is now in the state of Indiana, and

Whereas, the governor of Idaho, to wit, Hon. D. W. Ballard, is about to issue his requisition upon the governor of Indiana for the rendition of said John A. Andrews as a fugitive from justice, and is about to appoint George Franklin Settle as a suitable person to receive and return said Andrews from the state of Indiana to the sheriff of Alturas county, Idaho. Now it is expressly understood and agreed on the part of said George Franklin Settle, by and with the governor, D. W. Ballard, upon the issuing of the said requisition, and his appointment as agent, or suitable person to return said Andrews, and in consideration of the interest of said George Franklin Settle in the property stolen or embezzled, by said Andrews, charged in said indictment as a felony, and a hope to recover the same, and in consideration of the sum of one dollar, advanced by the governor, the receipt of which is hereby acknowledged, I hereby agree to accept said agency, and proceed to the state of Indiana with said requisition, and use due diligence to return said fugitive Andrews. And I further certify and agree, that no other or further charge or claim shall ever be made by me, or in my behalf, against the territory of Idaho, or against Alturas county, on account of any services I may or shall render by reason of the issuing of said requisition for said John A. Andrews.

In witness whereof I have hereunto set my hand this twenty-fourth day of September, 1868.

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