Twinam v. Lucas County

Deemer, J. — The case comes to us upon a certificate from the trial judge, the material parts of which are as follows: “On the sixth day of July, 1896, the plaintiff, [232] J. W. Twinam, a deputy marshal of the city of Chariton, Iowa, filed a petition in the office of the clerk of the district court of Lucas county, Iowa, claiming that the defendant, Luca© county was indebted to him in the sum of fifty-six dollars and ten cents for service© performed by him as a peace officer, from the first day of October, 1895, to the first day of April, 1896, during his term of office as a deputy marshal, in the arrest, trial, and commitment of certain persons commonly called tramps or vagrants, there being fifty-one different arrests, trials, and commitments, all of the said persons having been convicted in the justice courts in the said city of Chariton, Iowa, and that afterwards the fee bills for said services were transcripted by the justices of the peace to defendant’s county board of supervisors for allowance, and that said board of supervisors rejected the said claim for fees, and refused to allow the same; and that said board of supervisors, at their June session in the year 1895, and before the said services were rendered, fixed the amount of fees to be received by the peace officer© for the fiscal year ending June, 1896, which said fees were so fixed at the sum of twenty-five cents for all services performed in the trial and the commitment of vagrants or tramps to the county jail, and the sum of seventy-five cents for serving warrants of arrest, ■and ten cents per mile for mileage in each case, — making in all the sum of one dollar and ten cents as fees in each case tried, as fixed by the board of supervisors of defendant county as full compensation for ©aid services. * -x- * The trial judge desire© the opinion and determination of the supreme court upon the following question of law: First. Is the deputy city marshal of a city of the second class a peace officer, within the meaning of section six (6) of chapter forty-three (43), Acts of the Twenty-third General Assembly of the state of Iowa? Second. Is a deputy marshal of cities of the second class entitled to compensation from the countie© [233] in which such cities are located for services performed as a peace officer in the arrest, trial, conviction, and commitment of vagrants or tramps brought before justices of the peace for trial under chapter 43, Acts of the Twenty-third General Assembly of the state of Iowa?” Section 6, chapter 43, Acts Twenty-third General Assembly, makes it the duty of the board of supervisors to fix the compensation to be allowed to all officers, in the enforcement of the statutes relating to vagrancy, and further provides that the amount allowed the “peace officer” for all services except making the arrest shall not exceed a certain amount. The whole chapter relates to the arrest and punishment of tramps and vagrants. Code 1873, section 4109, is in the following language: “The following persons respectively are designated in this Code under the general term ‘peace officer’: 1st: Sheriffs and their deputies; 2nd: constables; 3rd: marshals and policemen of'incorporated cities and towns.” Chariton is a city of the second class, and section 3 of chapter 13 of the Acts of the Twenty-fifth General Assmbly provides that “in all such cities the marshal, deputy marshal and police shall be appointed by the mayor, with the approval of the council, and hold their offices during his pleasure;” thus recognizing a deputy marshal as one of the proper officers of such a municipality. Chapter 43 of the Acts of the Twenty-third General Assembly makes it the duty of all peace officers to arrest any vagrant whom they may find at large, and take him before some •magistrate of the county, city or town in which the arrest is made. To be entitled to any compensation for his services, the plaintiff must show that he is a “peace officer,” within the meaning of that term as used in the Acts of the Twenty-third General Assembly, to which • reference has been made, for [234] it is the universal rule that in the absence of some statute clearly authorizing it, a public officer is not entitled to compensation. White v. Levant, 78 Me. 568 (7 Atl. Rep. 539); Mecham, Public Officers, section 856; Troup v. Morgan County, 109 Ala. 162 (19 South. Rep. 503). The statutes do not define the duties of deputy marshals, nor do they fix their compensation. The ordinances of the city are not before us, and we are unable to say whether or not they define plaintiff’s- duties, and fix his compensation. It may be assumed, however, that his duties- are the same as those of the marshal. Abrams v. Ervin, 9 Iowa, 87. The marshal is a peace officer, and it is his -right, as well -as his -duty, to arrest vagrants. This his -deputy might also do, in the absence of any showing to the contrary. But this does not solve the problem here presented. Plaintiff’s right to- make arrests is unquestioned. The point in dispute is his right to compensation from the county. In the case of Upton v. Clinton County, 52 Iowa, 311, we held that, while the mayor of a city was a magistrate, and a conservator of the peace, and might perform the duties of justice of the peace, yet, as there was no statute allowing him compensation for work so done, he could not recover from the county. We then said: “Because a mayor is vested with the jurisdiction of a justice of the peace, it does not follow that he must have the same compensation, and be paid in the same manner. Fees and compensation of officers are fixed by statute, and are -arbitrary, -and subject to the legislative will.” See, also, Christ v. Polk County, 48 Iowa, 302; Ripley v. Gifford, 11 Iowa, 367. We look, then, to- see whether there is any statute fixing plaintiff’s compensation, and find that there is none, unless he is comprehended within the term “peace officer,” as used in the Acts of the Twenty-third General Assembly. In section 4109 of the Code of 1873 the legislature has said that the term “peace officer,” as used in the Oode, comprehends [235] sheriffs and their deputies, constables, marshals, and policemen of incorporated towns and cities. Deputy marshals .are not included, unless by implication. We ' do not think it was the intent that they should be included, for in naming sheriffs the legislature also says “their deputies.” If any deputy was to be included by implication, it certainly would be a deputy sheriff; but that it did not so intend is manif est from the fact that deputies áre named. When in the same section the legislature names marshals, and neglects to include their deputies, it is manifest that deputy marshals are not to be included. In the case of Foster v. Clinton County, 51 Iowa, 541, we held that a special constable, appointed by a justice of the peace under section 8680 of the Code of 1873, was not apeace officer, although he performed some of the duties of constable. As a deputy marshal is not a peace officer within the meaning of section 6, chapter 43, Acts Twenty-third General Assembly, he is not entitled to the compensation fixed by the board of supervisors. Both questions certified should be answered in the negative, and the judgment is affirmed.