offering support for the first proposition
How later courts described this case
- offering support for the first proposition
Written by the judges who cited it.
The opinion
MERRITT, Circuit Judge,
dissenting.
I do not agree that Ohio Rev.Code Ann. § 307.50 applies to this action. The majority has used a simple statute authorizing counties in the State to pay for the return of a fugitive to impose strict liability without any reasonable boundaries.
The section of Ohio law that the majority applies to this action provides: ■
When any person charged with a felony has fled to any other state, territory, or country, and the governor has issued a requisition for such person or requested the president of the United States to issue extradition papers, or the prosecuting attorney of any county in the state seeking the return of a felon has received notice of waiver of extradition, the board of county commissioners may pay, from the county treasury to the agent designated in such requisition, request to the president, or order by the prosecuting attorney seeking return, all necessary expenses of pursuing and returning the person so charged, or so much of such expenses as seem just.
Ohio Rev.Code Ann. § 307.50 (Anderson 1992) (emphasis added).
Section 307.50 merely authorizes the board of county commissioners to pay necessary expenses, or so much as seem just, for the pursuit and return of a fugitive. The statute does not require the board to make such payments. If the legislature had intended to mandate payment in all cases, it would have said so, and it would not have given the county discretion to pay only “such expenses as seem just” to the county commissioners. The statute does not use words such as “must” pay or “shall” pay. Instead, the statute specifically states that the board “may pay ... expenses.” Under Ohio law, the word “may” is generally “construed to make the provision in which it is contained optional, permissive, or discretionary.” Dorrian v. Scioto Conservancy Dist., 27 Ohio St.2d 102, 107 , 271 N.E.2d 834 (1971). The word “may” is given a stronger interpretation only if the intent of the legislature clearly appears. Id. at 108 , 271 N.E.2d 834 . No such intent is exhibited in section 307.50. Nor does the *80 majority point to any such intent. This statute does not impose any liability on any Ohio authority to pay for the pursuit or return of a fugitive. Therefore, the statute should not be applied to this action. The effect of the Court’s holding is to create an Ohio statutory tort or right of restitution from § 307.50 that automatically results in liability for extradition expenses suffered by other states and their local governments. The Court imposes liability for the full amount claimed without requiring any investigation of the reasonableness of more than $100,000 in expenses. The Court cites no Ohio or other authority for the imposition of this judgment except § 307.50. If the liability is not based on the statute, what legal theory is it based on? The Court offers no other basis for its decision than the statute or simple judicial fiat.
In addition, the majority ignores the reasonable limitations specified in the statute. Section 307.50 grants the board discretion to limit the payment of necessary expenses to “so much of such expenses as seem just.” The majority disregards this limitation by accepting, without question, the huge bill sent by Lapeer County to Montgomery County.