[No. 974.]

#### JAMES SIAS, Petitioner, *v.*JAMES F. HALLOCK, State Controller, Respondent.

Keward — Statute Construed. — In construing the statute authorizing and requiring the payment of rewards in certain cases (St. 1S77, 92): *Held,*that it has no application to offenses committed against the United States and tried in the United States courts, hut applies to persons who violate the state law, and who are arrested under process issued out of state courts, and who are therein convicted.

*333Idem. —The reward, provided for in the statute, nmst he paid to the person or persons making the arrest.

APPLICATION for mandamus.

Tbe facts appear in tbe opinion.

*Robert M. Glarke,*for Petitioner.

*A. G. Mils,*for A. L. Nuckols.

*M. A. Murphy,*Attorney-General, for Respondent.

I. A reward offered for tbe apprehension of a thief and money can not be claimed by a sheriff or constable, who arrests the thief, by virtue of a warrant delivered to him for that purpose. (12 Ohio, 281; 15 Wend. 44; 16 Minn. 408; *Smith*v. *Whildin,*10 Pa. 39.)

II. A public officer can not receive, for performing an official duty, any other compensation or reward than that which is prescribed by law. *(Warner*v. *Grace,*14 Minn. 487; *Day*v. *Putnam Ins. Go.*16 Id. 408; *Hatch*v. *Mann,*15 Wend. 44; *Gilmore*v. *Lewis,*12 Ohio, 281.)

By the Court,

LEONARD, J.:

This is an application by the petitioner, James Bias, for a writ of mandamus to compel respondent, the state controller, to draw his warrant on the state treasurer in favor of petitioner for the sum of five hundred dollars reward, claimed to be due for the arrest of Bell and Wilson, who were arrested by petitioner, and thereafter tried and convicted in the United States district court in and for the district of Nevada, for the crime of robbing the United States mails.

Petitioner bases his claim upon the following statute:

> “The Governor shall offer a standing reward of two hundred and fifty dollars for the arrest of each person engaged in the robbery of, or in the attempt to rob, any person or persons upon; or having in charge in whole or in part, any stage coach, wagon, railroad train, or other conveyance, engaged at the time in conveying passengers, or any private conveyance within this state, or for the arrest of any person *334engaged in the robbery of, or in the attempt to rob, any person or persons upon any highway in the state of Nevada, the reward to be paid to the person or persons making the arrest, immediately upon the conviction of the person or persons so arrested; but no reward shall be paid except after such conviction.” (Stat. 1877, p. 92.)

A. It. Nuckols also claims the rpward, upon the ground that he gave information of the whereabouts of Bell and Wilson which led to their arrest, and hunted up the evidence upon which they were tried and convicted. The warrants under which Bell and Wilson were arrested were issued by United States commissioner J. H. Windle, at Elko, Nevada, upon the complaint of A. G-. Sharp, special postal agent of the United States, who took the same to Eureka and delivered them to the petitioner, Sias. Petitioner was then a deputy marshal of the United States and sheriff of Eureka county. He received the warrants from Sharp and arrested Bell in Eureka. With the other warrant he went to White Pine county, and, at Hamilton, arrested Wilson. The prisoners were thereupon taken by him before commissioner Windle, at Elko. He made his returns upon the warrants under which the arrests were made, showing that he had arrested both Bell and Wilson under and by virtue of said warrants, as deputy United States marshal. It is also admitted that Nuckols was constable of the ninth township of White Pine county during the time of the performance of the services for which he claims the rewards in question. He lived at Cherry Creek, and in his affidavit he states that Bell and Wilson were at all times within his reach by telegraph, and that he had kept constant watch of their movements, with the full intention of arresting them and bringing them before the United States courts, having them under a shadow for more than two months, and that any subsequent arrest was nothing more than the execution of his plans and orders.

After the conviction of Bell and Wilson in the United States district court, for mail robbery, both the petitioner and Nuckols presented their claims in due form to the board of examiners of the state, each demanding two bun-*335dred and fifty dollars reward for the arrest and conviction of Bell, and the same sum for the arrest and conviction of "Wilson, wliich claims were both acted upon and allowed by said board, and were afterwards certified and delivered to the respondent as state controller, who refused, and still refuses, to act upon either by drawing his warrant upon the state treasurer. In our opinion neither petitioner Sias nor Nuckols is entitled to receive the rewards mentioned in the statute quoted.

We have no doubt that the legislature only intended the payment of a reward for the arrest of any person who violates the state law in relation to robbery, and who is arrested under process issued out of state courts, and then only after conviction therein.

Bell and Wilson were arrested under a United States warrant and tried and convicted in a United States court, for an offense committed against the United States. For the arrest and conviction of persons guilty of robbing or attempting to rob the mails, the postal department offers and pays its own reward. When the legislature provided that “no reward shall be paid except after such conviction,” a conviction in the state courts was referred to. There was no intention to aid the United States government in the arrest and conviction of its criminals.

In the act concerning crimes and punishments we frequently find these words, “and upon conviction thereof shall be punished,” etc. For example: “Section 91. Every person who, by willful and corrupt perjury, * * * shall procure the conviction and execution of any innocent person shall be deemed and adjudged guilty of murder, and, upon conviction thereof, shall suffer the punishment of death.” The same words may be found in nearly every section of the act. It would not be denied that they refer to a conviction in the state courts only, although such courts are not designated in terms. It is equally plain to our minds that the same construction should be placed upon the statute under which the rewards are claimed in this case. There is another reason why Nuckols is not entitled to receive any reward. It appears that the petitioner, Sias, *336arrested both Bell and Wilson. Nuckols does not claim to have arrested either. The reward offered, and the only one that could have been offered under the statute, was for the arrest of the persons named in the statute, and it can be paid for no other sendee. What Nuckols’ rights would be as between him and the petitioner, if the latter was entitled to receive, and should receive, the reward claimed, we do not say. But so far as the state is concerned, no person can recover a reward, under the statute of 1877, without first showing that he made the arrest. By the very terms of the statute, the reward is “to be paid to the person or persons making the arrest, immediately upon the conviction of the person or persons so arrested.” No reward is offered for searching out the persons accused, or for hunting up testimony against them, or for watching them lest they go away. (See *Gilmore*v. *Lewis,*12 Ohio, 286.)

The writ is denied.