Mousseau v. City of Sioux City

Ladd, J. [247] No recovery for services rendered by public officers may be had unless compensation is directed by statute. Guanella v. Pottawattamie County, 84 Iowa, 36; Howland v. Wright County, 82 Iowa, 165. The state is not bound to provide for such payment, and he who takes employment under its agency accepts, with the -honors, the burdens also. Jefferson County v. Wollard, 1 G. Greene, 432. And a claim against a city or county -is not just unless the law somewhere requires or autnorizes its payment. Foster v. Clinton County, 51 Iowa, 541; Turner v. Woodbury County, 57 Iowa, 440. Whether plaintiff may recover, then, must be ascertained solely from the Code. Section 1125 reads: “The city council shall detail and employ, on the nomination of the principal political committee of each political party recognized as the two lead [248] ing parties, from citizens, or the police force of the city, from two to four special policemen for each precinct, and fully empower them for the special occasion of each election, who shall be men of good character and reputation, in equal numbers from each of the leading political parties, to present the violation of any of the terms, provisions or requirements of this chapter, or of any other command made in pursuance of any of the provisions hereof, and no other police officer than those above named shall exercise his authority for preserving order at or within one hundred feet of such voting places, unless called in by an emergency. If no policeman be in attendance, the judges of election ¡may appoint one or more specially, by writing, who shall have all the powers of such special policeman.” It will be observed that it is made the duty of the city council to employ the policemen, and only when this duty has not been discharged may the judges of election appoint, and even then it is discretionary. The only section of the Code which might be construed as fixing liability on the county is 1129 : “The expenses of providing booths, guard rails, and other things required in this chapter shall be paid in tire same manner as other election expenses.” But “things,” as here employed, very evidently refer to other materials of the character of that enumerated and used in connection with the place of voting, such as shelves, ink bottles, and pens menitoned in section 1113, ballot boxes in section 1130 and section 1132, poll books and the like. It cannot be that services to be rendered by policemen are referred to as “things.” Besides, the rate of compensation is nowhere specified, as is uniformly done throughout the Code with respect to county and state officers. As to which should, as a matter of right, pay is incidental only to reaching fair construction. It may be said, however, that even though the services be rendered at a general election, the necessity therefor in a large measure is peculiar to the city, and no injustice results from compelling its taxpayers to meet the expense. The policemen [249] have no part in conducting the election. Their duty is limited to maintaining order, and carrying out the directions-of the judges, for the prevention of the violation of the election laws. 3 This much may he said in justification of the requirement that the council make such use of the police force of’ the city. But no provision is made fox the compensation of those nominated by political parties. From the word “employ,” as here used, the obligation to. pay for the services to be rendered cannot be implied. According to Webster, the word means “to use; to have in service ; to cause to be engaged in doing something; to have or - keep at work; to give employment or occupation to; to intrust with some duty or behest.” It means no more than the * council shall intrust these duties to, and require their performance by, certain persons. The idea of hiring, in which, a request and agreement to pay is implied, is never included in the meaning of “employ,” save when applied to a servant or hired laborer. See McCluskey v. Cromwell, 11 N. Y. 593, and Emmons v. Elderton, 4 H. L. Cas. 624. It has-sole reference to a private agreement; for, as said at the outset, an agreement- to pay for official service may not be> implied as against the public, and officers are not to be com- • pensated in money unless this is directed by statute. While an office may be an employment, an employment is not always an office. There is a manifest difference between them. We need not stop here to dwell on the distinction. The authorities are reviewed in Daily Leader v. Cameron 3 Okla. 677 (41 Pac. Rep. 635). See People v. Langdon, 40 Mich. 673; Bunn v. People, 45 Ill. 403; Brown v. Turner, 70 N. C. 99. 4 Our conclusion that the idea of compensation is not to be implied from the use of this word is strengthened by the circumstance that fees to be allowed are not fixed in the Code. Nor do they appear to have been providers,.by any ordinance under section 676 of the Code.. [250] Possibly the omissions referred to ’are due to- au oversight ■on the part of the legislature. If so, it is not the province of .the court to supply them. — Reversed.