Foster & Foster v. County of Clinton

Day, J. — I. The plaintiffs claim that they are entitled to recover because of their selection to prosecute the cases by A. S. McKinley, a constable of Clinton township. The provisions of the Code upon the subject are as follows: “Section 1551. All peace officers shall see that the provisions of this chapter are faithfully executed, and when informed that the law has been violated, or when they have reason to believe that the law has been violated, and that proof of the fact can be had, such officers shall go before a magistrate and make information of the same and of the person so violating the law. Upon the fding of such information before a magistrate he shall institute a suit and proceed to the arrest and trial thereof, according to law. Upon trials before a magistrate it shall be the duty of the District Attorney to appear for the State, unless the .person filing such information shall select some other attorney. * * *” “Section 3829. An attorney appointed by a court to defend a person indicted for any offense is entitled to receive from the county treasury the following fees: For a case of murder, such fee as the court may fix; for a felony, such fee as the court may fix; for misdemeanor, five dollars; any attorney selected by a peace officer, for appearing and prosecuting before a justice of the peace a prosecution for selling intoxicating liquors, five dollars.” In order to arrive at the proper meaning of these sections they must be considered together. It is evident that section 1551 of the Code authorizes only the person who filed the information to select an attorney to prosecute this case. This is evident from the plain reading of the section: “It shall be the duty of the District Attorney to appear for the State, unless the person filing such information shall select some other attorney.” Now, while McKinley was a peace officer, he had nothing to do with the filing of the informations. Ha [546] was simply, as lie states in. his certificate, in attendance upon the trial of the cases. We think it is clear that McKinley’s selection of the plaintiffs to prosecute the cases does not entitle them to fees from the county. i. ATTOH.W: selection to prosecute: infftiuo?s.ins II. The plaintiffs further claim that they are entitled to compensation from the county for their services because of their selection to prosecute the cases by A. C. _ . or* ■% i . Perry. A peace officer only can render a county liable for services performed by an attorney, at his request, in prosecutions for a violation of the prohibitory liquor law. Blair & Bronson v. Dubuque County, 27 Iowa, 181; Code, § 3829. The question is thus raised whether A. C. Perry was such peace officer as is authorized to select an attorney for the prosecution of a case under the prohibitory liquor law, and render the county liable for the compensation of such attorney. Section 4109 of the Code provides: “The following persons respectively are designated in this Code under the general term peace officer: First, sheriffs and their deputies; second, constables; third, marshals and policemen of incorporated cities and towns.” Appellees claim that Perry was appointed a special constable under section 3630 of the Code. This section provides : “Any justice of the peace may, in writing, specially depute any person of suitable age to perform any particular duty properly devolving upon a constable, and for that particular purpose he shall be subject to the same obligations and receive the same fees.” The appointment of Perry is as follows: “You are hereby appointed special constable, for the purpose of assisting peace officers of Clinton to seize liquors, this 29th day of June, 1878.” This appointment, it seems to us, if it authorizes Perry to do anything, authorizes him only to seize the liquors; that is, to serve the warrants, and in that way take the liquors into his custody. It is only for the particular purpose for which the person is specially deputed-that he is subject to the same obligations as a constable. No obligation nor authority, we think, is conferred upon a per [547] son, specially deputed' to serve a warrant for the seizure of liquors, to make information, in the capacity of a peace officer, to a violation of the prohibitory liquor law. Besides, the duty of seeing that the provisions of the prohibitory liquor law are faithfully executed is a mere incident of the official position of a peace officer. The statute declares who peace officers are. They are sheriffs and their deputies, constables, marshals and policemen. No other officer is entitled to that designation. A justice of the peace cannot create a peace officer. The most that he can do is to specially depute a person to perform a particular duty devolving upon a constable. We do not think that hé can depute a person to see that the prohibitory liquor law is faithfully executed, and to file informations for its violation. This duty pertains to a peace officer, and it cannot, by the mere appointment of the justice of the peace, be transferred to a private individual. Further, a justice of the peace is authorized to depute a person to perform a particular duty. By this we understand he may depute a person to serve a particular warrant, or to arrest a particular person, or to subpoena the witnesses, or serve the jury in a particular case or the like. But one appointment of Perry was made, and that is general, “for the purpose of assisting peace officers of Clinton to seize liquors.” Perry filed twenty-four informations, and selected the plaintiffs to prosecute in each case. We feel clear that he derived no authority from the appointment of the justice to do so, and that he did not, by such appointment, become a peace officer as contemplated in the statute. of district attorney. III. The plaintiffs claim that they are entitled to recover because the District Attorney requested them to appear in his stead and place. That a District Attorney cannot render a county liable for his employment of attorneys, see Tatlock & Wilson v. Louisa County, 46 Iowa, 188. IV. Lastly, it is claimed that plaintiffs should recover [548] under section 303 of the Code, which confers upon the board of supervisors power “to examine, settle and allow all just claims against the county.” A claim is not a just claim against the county unless the law somewhere either requires or authorizes its payment. We have discovered no such requirement or authority as to the claim in question. The judgment must be Reversed.