Crocker vs. Supervisors of Brown County.

upon the judgment which he has recovered for his client, for his services and disbursements in recovering the same. In addition to the cases cited by counsel for the plaintiff, see Courtney v. McGavock, 23 Wis., 619, and cases there cited; also Marshall v. Meech, 51 N. Y., 140.

Indeed, were we to presume (as we reasonably might presume) that the written contract on which the actions were founded was in the possession of the plaintiff's attorneys during the litigation, such lien extended to the cause of action; and payment of the plaintiff's claim to the plaintiff, without the consent of his attorneys, even before judgment, would not defeat such lien. Howard v. The Town of Osceola, 22 Wis., 453.

In any view of the case, the motion must be denied. The defendant having died while the motion was pending, the order denying the same will be entered as of April 15th, 1874; and, under the special circumstances of the case, no costs will be awarded, other than clerk's fees on the motion.

By the Court. So ordered.

CROCKER VS. SUPERVISORS OF BROWN COUNTY.

OFFICERS, FEES OF: SHERIFF.

(1) Officers assume office cum onere.

(2) Statutory fee to sheriff excludes other fee. (3) Judgment for illegal sheriff's fees, reversed.

1. Officers take their offices cum onere, and services required of them by law, for which they are not specifically paid, must be considered compensated by the fees allowed for other services.

2. Where a statute gives a fee to the sheriff or other officer for the service of process, and there is nothing in any statute showing a different intention, no other or further fee can be charged; and the county board of supervisors has no authority to make extra allowances to the officer for such services.

8. The statute (R. S., ch. 133, sec. 1, subd. 27; Tay. Stats., 1514, § 1, subd. 27) fixes the sheriff's fee "for traveling to serve criminal process, at ten

Crocker vs. Supervisors of Brown County.

cents per mile for every mile actually traveled." The plaintiff, as sheriff, having charged the county various sums in addition to such statutory fee, for personal expenses, hotel bills, railroad fare, team hire, etc., while traveling to serve criminal process, and having recovered judgment therefor, such judgment is reversed.

APPEAL from the Circuit Court for Brown County. The case came on for trial in the circuit court upon the ap. peal of plaintiff from the disallowance of a portion of his claim presented to the county board of supervisors. Plaintiff was sheriff of Brown county, and in that capacity received a warrant for the arrest of a person charged with larceny. He presented his account for services in making the arrest to the board of supervisors, charging, in addition to the ordinary fees for service and mileage, various sums for use of teams, traveling expenses, railroad fare, telegraphing and "necessary expenses." The county board allowed a portion of the account, but disallowed the charges for team hire, expenses and railroad fare. Plaintiff owned a livery stable, and his special deputy, whose services were charged in the same bill, also owned a livery stable, and the horses used were their own. The circuit court disallowed the railroad fare, but found the plaintiff entitled to the team hire charged, and gave judgment accordingly; from which defendant appealed.

ute.

John J. Tracy, for appellant, argued, that at common law there were no costs, and that costs of every kind, whether fees or disbursements, are given only by statute. State v. Kinne, 41 N. H., 238. And sheriffs received no fees until given by stat The statute provides a liberal compensation for sheriffs, allowing for "traveling to serve any criminal process, for every mile actually traveled, ten cents per mile, whether in the county from which process issued, or not." Tay. Stats., 1514, § 1, subd. 27. This language seems clearly intended to cover the expenses of travel of every kind, and this intention is made more clear by comparing this clause with several others of the same section, where he is allowed for certain specified services

Crocker vs. Supervisors of Brown County.

"all necessary expenses. Again, officers take their offices cum onerewith knowledge of what their duty is, and of the fact that the only compensation provided by law for doing that duty is found in the itemized fee bill contained in the statute. They can claim nothing more than is there given. If there is any duty required of them for which no compensation is provided, they must perform that duty gratuitously. See Ex parte Miner, 2 Hill, 411; Board of Comm'rs etc. v. Blake, 21 Ind., 32; Board of Comm'rs etc. v. Johnson, 31 id., 463. And see the case of Massing v. The State, 14 Wis., 502.

0. B Graves, for respondent. [No brief on file.]

DIXON, C. J. Officers take their offices cum onere, and services required of them by law for which they are not specifi cally paid, must be considered compensated by the fees allowed for other services. This principle is well settled, as will be seen by examination of the several authorities cited to this point by counsel for the defendant. But in this case the plaintiff was not without specific compensation in the form of fees expressly given by statute for the services rendered by him, and for the performance of which he has charged and obtained judgment against the county for several sums beyond the statutory allowances. The sums charged were for personal expenses, hotel bills, railroad fare, team hire, etc., while traveling to serve criminal process, for which the statute says ten cents per mile shall be paid. R. S., ch. 133, sec. 1; subd. 27; 2 Tay. Stats., 1514, subd. 27. Those charges were wrong, and it was wrong for the circuit court to allow them, and the judgment appealed from is erroneous. Where a statute gives a fee to the sheriff or other officer for the service of process, and there is nothing in the same or some other statute showing a different intention, the fee so given is the sole compensation to the officer for the performance of the service, and no other or further can be charged or obtained.

This principle has been directly affirmed by the decisions of

The State vs. Bartlett.

this court in Massing v. The State, 14 Wis., 502; Jones v. Supervisors of Grant County, id., 518, and Tenney v. The State, 27 id., 387. And in such case the board of supervisors have no authority to make extra allowances to the officer, even though they should be of opinion that he ought to have them. This has been determined in several of the adjudged cases cited by counsel for the defendant.

The plaintiff in this action, the respondent on this appeal, has not appeared in this court by counsel or otherwise, and no brief has been filed in his behalf. We are not informed, therefore, what the position or views taken in support of his claims are, and must presume that the claims, beyond the fees allowed by the statute, haye been abandoned as hopeless on his part.

The judgment must be reversed, and the cause remanded for further proceedings according to law.

By the Court. It is so ordered.

THE STATE VS. BARTLETT.

CITY CHARTER: POLICE JUSTICE. (1, 2) Provisions of charter for substi tute for police justice, held valid. (3) Presumptions in favor of jurisdiction of such substitute. (4) De facto police justice; his jurisdiction cannot be questioned collaterally.

CONSTITUTIONAL LAW: CITY CHARTER. (5) Criminal actions must be in name of state. Charter provision as to prosecutions for assaults in name of city, void. (6,7) Appeals in criminal actions. Particular corporation cannot be exempted by name from general law.

1. The charter of a city provides for the election of a police justice for a term of two years, with exclusive jurisdiction of criminal cases aris ing within the city, cognizable before a J. P. It further provides that, "in case of the absence, illness or other inability of such police justice, or for any sufficient reason, the mayor, by warrant, may au. thorize any justice of the peace within said city to perform the duties of said police justice for the city; and it shall thereupon be the duty

of the mayor * * to make report" of such substitution to the

The State vs. Bartlett.

common council, "and they may confirm or set aside such appointment," etc. Held, that this provision as to substitution is valid.

2. By the general laws of the state, each J. P. in said city would have the jurisdiction which said charter confers upon the police justice; and the clause above recited, relating to substitution, merely provides for removing the charter restrictions from one of said justices, to be designated by the mayor, in certain contingencies.

3. On a writ of habeas corpus it appeared that the petitioner was held by the sheriff under a warrant of commitment signed by one P. as 16 acting police justice" of said city, for nonpayment of a fine imposed upon him in a criminal prosecution as for an assault and battery, be fore said P. as such acting police justice; and the sheriff's return states that P., when he issued said warrant of commitment, was acting police justice of the city by virtue of a warrant issued to him by the mayor pursuant to the provisions of the charter, he being at the time a J. P. in said city. Held, that nothing appearing to the contrary, it must be presumed in favor of the jurisdiction, that P. was a duly elected and qualified J. P. of said city; that there was a legal and sufficient cause for his appointment by the mayor to act as police justice; that the warrant of appointment was in due form; and that such appointment was duly confirmed, if that was necessary to its validity.

4. Even if the provisions of the charter by which P. was appointed to act as police justice were invalid, he was still the de facto police justice, and his right to exercise the office could not be determined in a collateral proceeding.

5. By sec. 7, art. VII of the state constitution, all criminal prosecutions in this state must be carried on in the name of the state of Wisconsin; and a provision in the charter of said city directing certain prosecutions for assaults, batteries and affrays to be commenced in the name of the city, is void.

6. Said charter also provides that, "in all cases of prosecution *

* for

any assault, battery or breach of the peace, or any affray not indictable, committed within the city limits, no appeal shall be allowed, where the judgment or fine, exclusive of costs, is less than twenty-five dollars." It seems that all offenses of the kind named are indictable in this state, and there is, therefore, nothing to which such provision denying an appeal can apply.

7. It seems, also, that if there were any criminal actions to which such provision could apply, it would be invalid, on the ground that it exempts a particular corporation by name from the operation of the general laws of the state touching appeals. Durkee v. Janesville, 28 Wis., 464.