Labour v. Polk Co.

• Decision Date: 01 March 1887
• Citation: 70 Iowa 568,31 N.W. 873
• Parties: LABOUR v. POLK CO.
• Court: Iowa Supreme Court

70 Iowa 568

31 N.W. 873

LABOUR

v.POLK CO.

Supreme Court of Iowa.

March 1, 1887.

Appeal from circuit court, Polk county.

The plaintiff is police judge of the city of Des Moines. He brought this action to recover from Polk county certain fees in criminal cases where the prosecution failed, and in cases where such fees could not be made from the persons liable therefor. The answer of the county denies the indebtedness. There was a trial to the court on an agreed statement of facts, and a judgment for plaintiff. Defendant appeals.George F. McClelland, for appellant.

C. P. Holmes and Baylies & Baylies, for appellee.

ROTHROCK, J.

The provisions of the Code to be construed in determining the questions presented are as follows: Section 543 provides that the police court shall have the powers and jurisdiction of justices of the peace. “Sec. 544. The police judge holding the police court shall be entitled to receive in all criminal cases prosecuted in behalf of the state, the same fees, to be collected in the same manner, as a justice of the peace in like cases; and, in cases prosecuted in behalf of the city, such fees, not exceeding those for services of like nature in state prosecutions, as the council may by ordinance prescribe, and shall also receive such salary or compensation as the city council may in like manner prescribe.” Sections 3804 and 3805 fix the fees of justices and constables. “Sec. 3806. The fees contemplated in the two preceding sections in criminal cases shall be audited and paid out of the county treasury in any case where the prosecution fails, or where such fees cannot be made from the person liable to pay the same; the facts being certified by the justice, and verified by affidavit.” Section 1, c. 56, Laws 1878, provides that cities of the first class “may provide by ordinance” for the payment of a salary to the police judges in lieu of fees provided by law. “Sec. 2. No such officer shall receive for his own use any fees or other compensation for his services, of 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 service shall by such officers, when collected, be paid into the city treasury at such times and in such manner as may be prescribed by ordinance. Sec. 3. * * * Provided, that the intent of the act is not to abolish any fees now allowed by law, but to require the same to be paid into the city treasury.”

By an ordinance of the city of Des Moines passed March 25, 1879, it was provided that the police judge should receive a salary of $1,000 per annum, which should be in full compensation for his services, but that the fees allowed by statute or ordinance should be collected as before, and, when collected, should be paid into the city treasury. Section 5 of the ordinance is as follows: “Any officer receiving any such fees shall pay the same into the city treasury on or before the first day of each calendar month after the same are received by him: provided, that all fees and costs paid into the police court on any account of fees allowed by law to the police judge shall be paid to the police judge, and by him paid into the city treasury, and reported to the city council as above provided.”

The first point insisted upon by appellant's counsel is that the plaintiff, the police judge, cannot recover the fees for his own term, (1) because he has been paid a salary for all his services in lieu of fees; (2) because, if the fees are collected, they are to go to the city treasury, and he is therefore not the real party in interest; (3) that the law authorizing the payment of fees from the county treasury is unconstitutional.

The statute authorizing the city council to fix a salary for the police judge expressly provides that it was not intended to abolish fees then allowed by law, but to require the same to be paid into the treasury. It is the policy of the state to provide for the expense of enforcing its criminal laws. To some extent it does so by making provision for the payment of fees to justices and police judges, aiding in the enforcement of such laws. If the cities provide for salaries for the payment of its officers for...