William J. A. Bradford v. The Commissioners of Jackson County.

compensation is given, and it is such sum as the commissioners shall from time to deem proper. Without some violation or omission of duty the commissioners could not be sued, unless upon contract. No contract can be presumed against their duty. Their duty is to allow such sum as they deem proper. No other sum can be taken to be due. It follows that the claim for the services must be ascertained by the measure prescribed by the law to ascertain it. Nothing appears by the record that the claims set up by the plaintiff have been thus ascertained, and until thus ascertained, there is no legal liability on the part of the commissioners to pay any particular sum. The amount is at their discretion, and if bona fide exercised upon the case, upon presentation would fix the amount.

It is not denied that if the commissioners, upon the presentation of the claims for the services rendered them, had acted in bad faith, their duty might be enforced by the proper legal proceeding. But there is extreme doubt whether the proper or legal remedy would be by action of assumpsit. Under the statute no other contract can be presumed, for compensation to district prosecutors, than the one prescribed, which is to pay the sum such commissioners shall deem proper.

BY THE COURT, WILSON, JUSTICE.It is not necessary to consider the errors separately, as the solution of one question will decide this case. That question is this: Whether the district prosecutor can commence and maintain a suit, in the District Court of Jackson county, for his services, against the county commissioners of that county.

*The fifth section of the "Act for the appointment *222 of district prosecutors, and defining their duties," enacts, "that the said district attorneys shall receive such compensation for their services as the board of county commissioners of their respective counties shall from time to time deem proper, either as an annual salary, or by

William J. A. Bradford v. The Commissioners of Jackson County.

making payment on the bills for services rendered." This section contemplates an exercise of the discretion of the county commissioners; not only as to the amount of compensation, but as to the time of payment.

It is left to their discretion as to the amount; for it provides that "the district prosecutor shall receive such com pensation as the board of commissioners shall deem proper," and also, as to the time, for it further provides that the compensation may be as an annual salary, or by making payment on the bills for services rendered, as they (the commissioners) shall judge best.

This suit, as appears from the declaration, was brought for the services of the district prosecutor, at the October term, 1840, of the District Court for Jackson county; and there is no averment of a neglect on the part of the county commissioners to act in the premises no averment of a demand. Would it not be a sufficient compliance with this statute if the commissioners would make an allowance to the district prosecutor, as the salary for a year, commencing after a specified time? We think it would. If so, can the prosecutor bring an action for a week's ser vice? If he can, then that part of the statute which says that they may make him the allowance as an annual salary, or upon bills rendered, as they may deem proper, would be a nullity; for, by bringing suit for one week's service, and recovering the value thereof, he takes away the discretion vested by law in the commissioners, both as to the amount of compensation and as to the time of payment. In the act referred to, no provision is made for a review of their decision in the District Court. The fourth section of the act "organizing a board of county commissioners in each county in the territory of Iowa," is relied on by the plaint iff in error as authorizing the institution of this suit. This section, after enacting that the board of commissioners may sue in their corporate name, provides that the board "may in like manner, by and under their corporate

William J. A. Bradford v. The Commissioners of Jackson County. name and style, be sued by any person or persons having any manner of claims against said county." This statute was passed December 14, 1838, and the statute in reference to the district prosecutor, which vests the discretion in the board of county commissioners, was passed January 15, 1839. That these statutes conflict, no one will deny; and if so, then the last must stand; especially as it *223 refers to the particular case, while the other is general. Whether the discretion vested in the commissioners is of that absolute character as to preclude the right of a rehearing in the District Court, either by an appeal under the general provision allowing appeals from the decisions of the boards of county commissioners, by persons aggrieved by such decisions, or upon a mandamus to such board; whether the discretion vested in the county commissioners is such a discretion as a Court may exercise, in regulating its proceedings, or whether the county commissioners are bound to allow a reasonable compensation, such as a reasonable man would think the prosecutor ought to have for his services, it is not necessary in this case to decide, as the questions are not presented by the record. We decide all the questions presented in this case when we say that the discretion of the commissioners must be first exercised in reference to the matter, and that the fifth section of the act in reference to district prosecutors precludes the idea of their commencing suit against the county commissioners in the District Court, by declaration and sum

mons.

The judgment below is affirmed.

Peter A. Lorimier and Charles H. Gratoit v. The State Bank of Illinois.

PETER A. LORIMIER and CHARLES H. GRATOIT, impleaded with George W. Campbell and Dickinson B. Morehouse, plaintiffs in error, v. THE PRESIDENT, DIRECTORS AND COMPANY OF THE STATE BANK OF ILLINOIS, defendants in error.

Error to Dubuque.

The District Courts of this territory are not District Courts of the United States, properly speaking, but Territorial Courts, having the powers of such Courts (t).

The appearance by attorney, and filing a plea with another defend. ant, dispenses with the necessity of service of process upon him, and is a waiver of all objections on that score.

This was an action of assumpsit, founded on a promissory

note, given by C. H. Gratoit & Co., and Campbell *224 & Morehouse to the President, *Directors and Com

pany of the State Bank of Illinois, for twenty-eight hundred aud fifty dollars, dated February 18, 1840, and payable sixty days after date.

To the writ of summons in this case issued, the sheriff returned "served by delivering an attested copy thereof to Peter A. Lorimier, this 20th day of October, A. D. 1840. Charles H. Gratoit, George W. Campbell, and Dickinson B. Morehouse, not found in my county."

The plaintiffs declared against Charles H. Gratoit and Peter A. Lorimier, late partners, doing business under the name and style of C. H. Gratoit & Co.; and George W. Campbell and Dickinson B. Morehouse, late partners, doing business under the name and style of Campbell & Morehouse. To the special count on the note was added a count for money had and received.

The defendants, by Hempstead and Bradford, their at

(t) To the same effect is the present statute. Rev. § 2840; Wilsey v. Maynard, 21 Iowa, 107.

Peter A. Lorimier and Charles H. Gratoit v. The State Bank of Illinois.

torneys, moved to quash the said writ and dismiss the proceedings, because there was variance between the plaintiffs' writ and declaration therein, in this, that the declaration stated and set forth the defendants, Charles H. Gratoit and Peter A. Lorimier, to be partners, trading under the firm of Charles H. Gratoit & Co., and the defendants,. George W. Campbell and Dickinson B. Morehouse, to be partners, trading under the firm of George W. Campbell & Co., whereas the writ was against the said parties individually, only, and not against the said Gratoit and Lorimier as partners, nor against the said George W. Campbell and Morehouse, as partners. Which said motion to quash was overruled by the Court.

The said Peter A. Lorimier, one of the defendants, impleaded, &c., in his own proper person then pleaded to the jurisdiction of the Court, and that it ought not to have or take further cognizance of the action, because that the said Court sitting in its said capacity of a District Court of the United States, had not, nor could exercise any jurisdiction of the matter set forth in the plaintiffs' declaration, and averred that there was another Court established by law which was legally authorized to hear and determine pleas in assumpsit, debt, and issues arising thereon exclusively of the United States District Court or any other tribunal, to-wit: the District Court of said territory, being the law of Congress of the United States for organizing said territory, and by the laws of said territory, that said Court had by law exclusive cognizance and jurisdiction of the action of said plaintiff. Which plea was overruled by the Court.

The defendants then pleaded the general issue.

*At the May term, 1841, the defendants having, by *225 leave of the Court, withdrawn their plea, judgment

was awarded the plaintiffs for the sum of $3,042.22 damages and costs.