Peters v. City of Davenport

Deemer, C. J. 1 Appellant claims that appellee requested him, in his official capacity as justice of the peace, to collect the delinquent poll taxes appearing upon its lists, by aresolution as follows: “That the city collector be authorized to deliver to Justice Peters for collection, the delinquent poll tax lists, on the same terms as last year;” that he brought suit for the collection of these taxes, with knowledge of defendant; -and that his fees for so doing amounted to three thousand two hundred and sixty dollars, which amount he sought to recover from defendant Defendant pleaded that, prior to the year 1888, it had entered into contracts with various persons for the collection of like taxes, and had agreed to give the persons so [627] employed twenty-five per cent, of the amount actually collected, in full compensation for their services; that, when passing the resolution relied upon by appellant, it had in mind and- referred to this arrangement, and appellant so understood it in accepting the lists for collection; that the collections made by him were under and by virtue of this contract, as an agent of the city, and not in his capacity as justice of the peace; that appellee paid him the agreed compensation from time to time as earned; and that appellant accepted the same as full compensation, and never made any claim to the contrary until many years after the services were performed. The appellant offered evidence tending to show that he was a justice of the peace when the lists were turned over to Mm, and that fees, to the amount claimed were taxed against appellee, and that the tax lists were turned over to him by the city collector. He also offered the resolution of the city council hereinbefore ref erred to, and stated that he did not know what the words “on the same terms, as last year” referred to, except that “the city council used to. pay twenty-five per cent, on delinquent poll tax collection.” He further proved that the city council took action with reference to the relief of certain parties who were made defendants to the suits. Evidence was also adduced to the effect that the appellant was allowed twenty-five per cent, of the collections made. It was also proven that the mayor of the city, during the years 1890 and 1891, knew that suits were instituted for the collection of poll taxes. This was the showing made by appellant. Appellee’s motion to direct a verdict was based upon the ground that appellant’s services were rendered under contract, and that, by his own showing, he had been fully paid; and for the further reason that he has shown the services were performed under contract, but has failed to show what the contract in fact was. [628] 2 The issues upon which the case was tried are somewhat peculiar. Appellant seeks to recover, upon the theory that the tax lists were turned over to him for collection in his official capacity as justice of the peace. True, he also pleads that appellee’s officers and agents had knowledge that actions were being brought, and judgments obtained, and that it accepted the proceeds collected through judicial proceedings, But he makes this allegation as evidence of the fact that he was requested to collect these taxes as justice of the peace, and hot by way of estoppel. To recover upon this theory, he must show that the tax lists were delivered to him in his official capacity; that he was authorized and empowered to commence suits against those who failed to pay, and was to receive his fees as part compensation. For this purpose he introduced the evidence heretofore set out. It also appears that he received from time to time twenty-five per cent, of the amount collected for his compefisation, and never made any claim to the contrary until the commencement of this suit, which was some four years after the services were performed. The trial court evidently found that the lists were delivered to appellant for collection a® an agent for appellee', and not in his official capacity as justice of the peace. It is conceded that appellant might act in either capacity, and counsel agree that if he acted simply .as agent of the city, for an agreed compensation, he is only entitled, under .the issues as stated, to the sum agreed to be paid. 3 Suggestion is made in argument that a contract whereby an officer agrees to accept a less or greater compensation than is prescribed by statute, or whereby he agrees not to avail himself of the statutory mode of enforcing the collection of his fees, is contrary to public policy, and void, and that an officer performing service at the request of another is entitled to the fees provided by statute. That these are [629] correct rules must be conceded, but the difficulty lies in their application. Appellant has failed to show that the tax lists were delivered to him for collection in his official capacity. Moreover, the resolution offered does not in itself authorize the collection of the taxes by suit, and there is nothing to show that the “terms of the last year” justified the bringing of actions against the delinquents. Appellee cannot be made liable for costs without .authority, either express or implied, in him who .instituted the actions. Just what appellant’s authority was is not shown, and for that reason, if for no other, he cannot recover. [4] 5 One theory of appellant seems to be, that as he was employed to collect the. delinquent taxes, and instituted the suits with knowledge of the defendant’s officers, he is entitled to the fees taxed in those actions', without reference to the fact that he has received full compensation under his contract. No doubt this would have been true had he instituted suits under authority simply to collect. But as he instituted the actions under a specific agreem ent as to compensation, and as he has received the amount agreed to be paid, he is in no position to say that he is also entitled to fees as justice of the peace for performing judicial service. See Willemin v. Bateson, 63 Mich. 309 (29 N. W. Rep. 734). It is familiar doctrine that, when .an illegal or immoral contract is executed, the parties will be left as they are found, and neither can predicate any rights thereon. Concede, then, that the contract contemplated services by the appellant as justice of the peace, and that the agreement was illegal; as it has been fully executed, the .appellant cannot rely thereon as a basis for his claim for additional compensation. Harvey v. Tama County, 53 Iowa, 228. If it should turn out, therefore, that appellant had authority to institute suits by reason of his contract of employment, it does not follow that he is entitled to the fees [630] taxed in these actions. He cannot make an illegal contract the basis for the recovery of his fees. Had there been no contract except that he should collect as justice of the peace, he would then be entitled to statutory compensation, and no other. Here was a contract, however, and appellant has received hi-s compensation thereunder. At least, he has not shown that anything is due him thereon. If this were a suit to collect fees, probably a different rule would obtain, and the question in such an action would relate simply to the authority of the justice to institute the proceedings-, or to ratification by the city of the appellant’s conduct in bringing the suits. 6 (Nairn is made that various officers, of the city, and the' council itself, ratified the bringing of the suits-, and for that reason is. liable for the fees. If the case turned upon the authority of appellant to bring the suits, there might be -some force in this position, for there was evidence from which a jury might have found ratification. But such is not the point of inquiry. The ultimate question for determination is: Is plaintiff entitled to his fees, as part compensation for services performed under the contract? In this- respect the case differs from Hawkeye Ins. Co. v. Brainard, 72 Iowa, 130, and Gilman v. Railroad Co., 40 Iowa, 200. 7 I. Complaint is made of the rulings of the court in the admission and rejection of evidence. For instance, appellant attempted to introduce certain statements made to him- by a member of the finance committee of the city council, before he entered int-O the contract. He -also offered to. prove certain statements said to have been made to him by the city collector. He further offered evidence as to what hi-s duties were in the collection of the taxes, and also offered to show what he -did in the matter of sending out notices to delinquents, and publishing demands in the city newspapers. All this evidence was clearly [631] iu&dm issible under the issues presented. None of these officers or agent® had authority to make .any statements which would be binding upon the city; and, as plaintiff was seeking to recover fees for services rendered, as j ustice of the peace, evidence as to the value of other services was clearly improper. We have examined all questions presented, and find ho error. — ’Affirmed.