City of Des Moines v. Polk Cnty.

• Decision Date: 04 February 1899
• Citation: 107 Iowa 525,78 N.W. 249
• Parties: CITY OF DES MOINES v. POLK COUNTY.
• Court: Iowa Supreme Court

107 Iowa 525

78 N.W. 249

CITY OF DES MOINES

v.POLK COUNTY.

Supreme Court of Iowa.

Feb. 4, 1899.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

This is an agreed case, and the facts are as follows: “(1) It is agreed: That Polk county is one of the organized counties of the state of Iowa. That the city of Des Moines is, and has been for 20 years, a city of the first class of the state of Iowa, situated in Polk county. That said city has provided and maintained for more than 10 years last past a police court, with a police judge, clerk, marshal, deputy marshal, and policemen, and a city solicitor, and has provided by ordinance that each of said officers shall receive a stated salary, payable in monthly installments in lieu of all fees; and that all fees earned by such officers by virtue of their several offices shall belong to the city, and be paid into the city treasury. (2) During the time since chapter 43, Acts 23d Gen. Assem., took effect, there have been brought into said police court, and tried, many persons charged with being vagrants and tramps. Transcripts of the costs in said cases where the prosecution failed, or where the costs could not be made from the defendants, have been duly made, certified, and sworn to, and filed with the county auditor, and presented to the board of supervisors, and remain on file with said county auditor. That at the regular June meetings in 1890, 1891, 1892, and 1893, the board of supervisors fixed the compensation to be allowed officers under chapter 43, Acts 23d Gen. Assem., as follows: To the trial magistrate, one dollar; to the peace officer, for all services except making the arrest and mileage, fifty cents. And upon said transcripts in vagrancy cases and cases against tramps brought since the time aforesaid said board of supervisors have allowed, and the county has paid, one dollar, and no more, police judge fees in each case, and no marshal or peace officer fees. (3) During the five years last past there have been brought in said police court, and tried and disposed of, a large number of cases, under sections 1544-1547 of the Code of 1873. Transcripts of the costs in such cases, where the county was liable for such costs, have been duly made, certified, sworn to, and filed with the county auditor, and presented to the board of supervisors, and remain on file with said county auditor. That no part of the marshal's fees shown on said transcripts have been allowed or paid.” The district court gave judgment for plaintiff, and the defendant appealed. Modified and affirmed.Thomas A. Chesshire, for appellant.

J. Edward Mershon, for appellee.

GRANGER, J.

Appellant contends that the city is not competent to maintain this suit, even though the county is liable for the fees. It will be well to recall, as facts in the case, that the fees which the city seeks to recover were earned by its police judge and its marshal, each of whom is paid, by the city, a salary in full payment for all services rendered by him. The following is a part of chapter 56, Acts 17th Gen. Assem.:

“Section 1. All cities of the first class, organized under the general incorporation law, and all cities organized under special charter, may provide by ordinance that all judges of police courts, or other city courts, and city marshals * * * shall receive in lieu of all fees now allowed by law or ordinance, such fixed salary, in monthly or quarterly installments, as may be provided by ordinance, when not provided by law, which salary, when it shall have been fixed, shall not be increased or diminished during their terms of office.

Sec. 2. No such officer of any such city shall receive, for his own use, any fees or other compensation for his services for such city, than that which shall be provided as contemplated in section one of this act; but all such fees as are now or may hereafter be allowed by law for such services, shall by such officers, when collected, be paid into the city treasury, at such time and in such manner as may be prescribed by ordinance.

Sec. 3. All acts and parts of acts in conflict herewith are hereby repealed: provided that the intent of this act is not to abolish any fees now allowed by law, but to require the same to be paid into the city treasury.”

By the stipulation of facts, it appears that the city of Des Moines did, by ordinance, provide for the payment of its police judge and marshal fixed salaries, payable in monthly installments in lieu of all fees earned by them, and that all such fees belong to the city, and are to be paid into the city treasury. Notwithstanding these provisions of the law, and the facts as stipulated, it is urged by appellant that the city cannot maintain the suit; that it is not the assignee of the police judge or of the city marshal; and that the effect of the sections above quoted is not to transfer the fees taxed to the city, but that they contemplate that the officers shall themselves collect such fees, and, when collected, they shall, by the officers, be turned into the city treasury. As showing the method of collecting fees from a county when due for services of an officer, we quote Code 1873, § 3843, as follows: “In all cases where fees or compensation as distinguished from a cer tain and fixed salary, are, by the provisions of this title, to be paid any officer or other person out of the county or state treasury, no part of the same shall be audited or paid, until a particular account has been filed in the auditor's office of the county or state, verified by affidavit, and showing clearly for what services such fee or compensation are claimed, and when the same were rendered.” Reliance is, in part, placed on the provisions of the foregoing section to show that it is the officer who earns the fee who is to collect it, because of the particular account to be filed, and the verification required thereto. Reliance is also placed on Labour v. Polk Co., 70 Iowa, 568, 31 N. W. 873, wherein it is held that an officer who has earned the fees, and whose compensation is fixed by ordinance, and paid, as in this case, is a proper party to sue and recover fees that are, when collected, to be paid into the city treasury.

We think appellant's contention cannot be sustained. The case of Labour v. Polk Co. holds that the officer is a proper party plaintiff to bring such a suit to collect the fees and turn them into the treasury. It is not to be said but that, in doing so, he acts in some capacity for the city. He is an officer of the city on whom the law enjoins the duty of collecting the fees. He is to make the required account, verify it, and file it with the county auditor; and, under the holding in Labour v. Polk Co., he may bring suit to collect them. The law is entirely silent as to who may bring such a suit, other than its general provisions that every action must be prosecuted in the name of the real party in interest, with certain exceptions....