Bodenhofer v. Hogan

• Decision Date: 10 April 1909
• Citation: 120 N.W. 659,142 Iowa 321
• Parties: G. F. BODENHOFER, Appellant, v. W. A. HOGAN
• Court: Iowa Supreme Court

120 N.W. 659

142 Iowa 321

G. F. BODENHOFER, Appellant, v. W. A. HOGAN

Supreme Court of Iowa, Des Moines

April 10, 1909

Appeal from Jones District Court.--HON. MILO P. SMITH, Judge.

ACTION brought by plaintiff, a deputy sheriff of Jones County, to recover from defendant, the sheriff of that county, an amount alleged to be due as compensation for performing the duties of deputy under appointment for the year 1906. There was a judgment for plaintiff in the sum of $ 72 admitted by defendant to be due, and a judgment for defendant for costs. Plaintiff appeals.

Reversed.

Herrick & Bauder and Remley & Remley, for appellant.

B. H Miller and W. I. Chamberlain, for appellee.

OPINION

MCCLAIN, J.

The statutory provision relating to the appointment and compensation of deputy sheriffs is: That each sheriff shall in writing appoint one or more deputies from whom he shall require a bond, which appointment and bond shall be approved by the officers having the approval of the principal's bond, and such appointment may be revoked in writing, all appointments and revocations to be filed and kept in the auditor's office; that the board of supervisors shall fix the number of deputies and the salary of each, and "the chief deputy shall be paid by the sheriff out of the compensation allowed him under the provisions of the preceding section, and all other deputies shall be paid by the county." Acts 29th General Assembly, chapter 27 (Code Supp. 1907, section 510b).

During the year 1905 the plaintiff was the deputy sheriff for Jones County, and defendant was the sheriff, and at the September meeting of the board of supervisors in that year the board fixed the salary of deputy sheriff at $ 50 per month until January 1, 1906. At its January meeting, 1906, on the 5th day of January, the board of supervisors by proper resolution fixed the salary of deputy sheriff for that year at $ 50 per month to be paid to him out of the compensation allowed the sheriff as required by the statute above recited. Two days previous to this last action of the board, the defendant, as sheriff, had in writing appointed plaintiff as his deputy, and the plaintiff had accepted the appointment by filing his bond, to which was attached an oath of office, and this bond had been approved on the same day by the board (see Code, section 1188), and the written appointment was indorsed on the back as approved by the county auditor. No question is made as to the regularity of the appointment of plaintiff, so far as the necessary formal action by the sheriff and the county authorities is involved, nor as to the discharge by the plaintiff of the duties of his office during the year 1906. Alleging these facts, plaintiff seeks to recover compensation from the defendant at the rate fixed by the board of supervisors, asking judgment for $ 480.50, the amount due after crediting defendant with $ 119.50 paid to him at various dates during the year. The defense is that plaintiff was not hired or appointed deputy sheriff under and by virtue of any resolution passed by the board of supervisors, but under an agreement that he should perform all the services necessary and required of him for the compensation of $ 200 per year, payable at the rate of $ 40 and expenses at the close of each of the four terms of court except that at the close of the fourth term the balance of the agreed annual compensation should be paid to him, and that at the close of each of the terms of the court, three in number, prior to October 12, 1906, the defendant paid the plaintiff in full under the contract, and plaintiff accepted and acknowledged the money so paid to be in full payment and satisfaction of the amounts due him as deputy sheriff, and defendant offers to pay a balance of $ 72, being the full amount remaining due plaintiff for services for the year 1906 under said contract. Plaintiff's motion to strike from the answer all the allegations relating to an alleged agreement to receive less than the compensation provided by the board of supervisors and alleged acceptance of compensation in full satisfaction of services rendered up to October 12th, on the ground that such allegations were incompetent, irrelevant and immaterial was overruled, and upon admissions by plaintiff that he solicited his appointment in January, 1906, and was informed by defendant that the services of a deputy sheriff were not required except during court time, and that those required were not worth the sum of $ 50 per month, and that defendant declined to hire or appoint him at a salary of $ 50 per month, and that he offered to accept the position for the agreed compensation of $ 200 per year payable as alleged by defendant, and on the further admission by both parties that plaintiff was the only deputy that defendant had during the year 1906, judgment was rendered in plaintiff's favor for the sum of $ 72, admitted by defendant to be due under the alleged contract, and against plaintiff for the costs of the action.

It is practically conceded in argument for defendant that plaintiff was during the year 1906 the "chief deputy," as he was the only deputy, and that his compensation was fixed by the board at $ 50 per month, payable according to law by the defendant. But defendant's contentions are, as we understand them, these: First, that plaintiff was not appointed such deputy as contemplated by statute, but under a special contract to perform only a part of the services which might have been required of a deputy duly appointed; second, that plaintiff was a party to an illegal agreement with reference to his appointment, an agreement against public policy, and therefore not entitled to recover any compensation whatever; and, third, that plaintiff, by accepting payment under the alleged illegal contract in full of services rendered thereunder, is barred from recovering the compensation provided by statute.

I. The claim that plaintiff was not appointed under the statute, but under a private agreement with defendant that he perform the duties of deputy at a different rate of compensation than that fixed by the board of supervisors in pursuance of the statutory provision, is entitled to no consideration whatever. There was a formal appointment, an acceptance, a fixing of compensation, and the performance of services, all as contemplated by the statute. Defendant had no authority whatever to make a private arrangement with the plaintiff to discharge the duties...