Page:North Dakota Reports (vol. 1).pdf/551

 date alleged, B. was a county commissioner, and, on that date, presented a bill to the county board of his county for a gross sum. The bill was allowed by the board, and ordered paid, and, on the same day, a warrant issued to B. for the amount of his bill, and was paid to B. out of the county treasury. The record book describes the bill as being rendered “for Com. services and work.” The bill as allowed and paid embraced the following items, viz.: (1) “April 29th, county committee work to Hankinson and Lidgerwood, three days with team, $18.” 2) “May 11th, committee work to Dwight, one day with team, $6.” 3) “May 13th, committee work to Moreton, one day with team, $6.” No evidence was offered explanatory of the above-mentioned items. in the bill, the prosecution claiming that where it appeared that such claims were in fact presented by and paid to an executive officer, that the offense defined in the statute was made out. At the close of the case for the state, defendant moved the trial court to advise the jury that the evidence was "insufficient to warrant a conviction." The motion was denied. Held, to be error. State v. Bauer, 273.

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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 for a 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. Id.

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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. Id.

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The following instructions were also given to the jury, and excepted to by defendant: “Now the particular charge upon which the prosecution in this case relies for a conviction is that this defendant, while acting as county commissioner and in the performance of his official duties, charged for the use of his team, or for the use of a team, Now, 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. Id.