85 Ark. 106 | Ark. | 1908
Cobb was appointed deputy prosecuting attorney by the prosecuting attorney, and was discharged, and has brought suit to recover on a contract alleged to have been entered into between them at the time of his appointment.
The complaint, which will be found in the statement of facts; was met by a demurrer, which was sustained, and Cobb has appealed.
The duties of a deputy prosecuting attorney lie wholly Within the courts of justices of the peace, and their fees are entirely dependent upon performing services there. Sections 6387 to 6391, Kirby’s Digest; Acts 1905, p. 559; and State v. McNair, 70 Ark. 65.
The complaint alleges that this deputy was not to perform services in justice’s court, except when called on by the magistrate to do so, and when the prosecuting attorney could not personally appear. ■ Presumably, this provision of the contract was made on the account of section 6390, Kirby’s Digest, making it the duty of the prosecuting attorney, or his deputy, to attend magistrate’s court when called upon to do so by the magistrate. With this exception, the whole services to be performed by the deputy were to assist the prosecuting attorney in the proper discharge of his own duties.
Where an officer’s compensation consists of fees for services of himself and deputies, it is competent for him to contract with his deputies for a division of the fees. Witter v. Arnett, 8 Ark. 57. Mr. Mechem thus states the rule:
“Where the duties of an office are such as may be performed by a deputy, and the fees attached to the office belong primarily to the principal, he may agree with his deputy to allow him a fixed compensation for his services, or that the deputy shall permit the principal to retain a certain proportion of the profits of the office.” Mechem on Public Officers, § 379.
But this is not such a case. The duties to be performed by the deputy in this case were principal’s duties, and not deputy’s duties, and the principal agreed out of his compensation to pay the deputy more compensation than the law authorized such deputy to receive.
Mr. Throop says: “It results from the proposition * * * that an bfficer is not entitled to compensation, unless it is given to him by the constitution or a statute, that where a a compensation is thus given, whether by salary, or by fees, or by commissions, or otherwise, it is in full of all his official services ; and he is not entitled to demand or receive any additional compensation, from the public or from an individual, for any service within the line of his official duty; although his duties have been increased, or entirely new duties have been added, since he assumed office; or, if his compensation consist of fees, although the service is one for which no fee is provided by law. And this proposition is declared and illustrated in numerous American authorities.” Throop on Public Officers, § 478.
A contract to pay an officer more or less compensation than that fixed by law is contrary to public policy and void. Mechem on Officers, § § 379-381; Throop on Public Officers, § § 477, 478; 9 Cyc. 496, 497 and notes 2 and 3.
Judgment affirmed.