Massing v. State

14 Wis. 502 | Wis. | 1861

By the Court,

Paine, J.

So far as the plaintiff’s account is for costs and expenses in serving subpoenas, it is disposed of by our decision in the case of Calkins & Proudfit against The State. The verdict finds, as the answer alleges, that the . plaintiff presented his account for those costs and expenses to the Legislature of 1858, and that a part of it, to wit, $60, was allowed, and that the plaintiff had received the money. Under our decision he is now precluded from suing for the balance.

The only remaining question arises upon the finding that the plaintiff was employed as sergeant-at-arms to arrest and hold in custody certain persons, as stated in his petition, and that he performed the services, which were worth $200, and that the plaintiff had been paid at the rate of $5 per day as sergeant-at-arms at the session of 1858;

The question is, whether, upon these facts, the plaintiff is in law entitled to recover of the state the amount which the jury found it was worth to arrest and hold in custody the several persons mentioned ? And this depends upon the question whether these services are to be considered as having been paid for by the five dollars per day, which the jury found to have been appropriated to the plaintiff as sergeant-at-arms. If the performance of those services was a part of his duties as sergeant-at-arms, and if the five dollars per day was all that he could legally claim for performing the duties of that office, it is clear that he has no claim to recover any thing more. If they were not a part of the duties of that office, and the plaintiff has only been paid for performing those duties, then he ought to recover.

But that these services were a part of the regular duties of a sergeant-at-arms, seems to us too plain to admit of any doubt. The rules of the assembly under which the plaintiff acted, prescribed certain specific duties, and then provided that he should “ perfoi'm all other services pertaining to the post of sergeant-at arms.” Assembly Journal, 1857, p. 22, Rule 40— adopted in 1858, p. 9, Assembly Journal of that year. In Cushing’s Law and Practice of Legislative Assemblies, p. 183, the duties of a sergeant-at-arms are thus stated. “ The duties of this office are analogous to those of a sheriff in a court of justice. They consist principally in attending upon the assembly, maintaining order among the persons there present — serving the processes and executing the orders of the assembly — giving notice to tbe presiding officer of persons attending with messages, or other communications, or in obedience to tbe orders of tbe Assembly — arresting persons, whether members or strangers, ordered to be taken into custody — and restraining in confinement, in his custody or elsewhere, all persons subjected thereto by way of punishment." Tbe arrest of persons is not as frequent in legislative as in judicial proceedings. But whenever it is required, it is generally understood to be as much tbe duty of tbe sergeant-at-arms to execute tbe process and bold tbe persons in custody as it is to be tbe duty of a sheriff to perform similar services for a court. 'This being so, it follows necessarily that tbe payment to tbe plaintiff of tbe five dollars per day for bis services as sergeant-at-arms at tbe session of 1858, must be held to have been payment for all bis services, and that be can no more recover now for these particular services than be could for performing any other portion of bis duties. The most usual course adopted by tbe legislature in paying its officers, has been to fix a per diem, and whenever this is done it is always understood that such payment is in full for such services. That course was,adopted in 1858. Chap. 5, G-en. Laws, fixes tbe pay of tbe sergeant-at-arms at five dollars per day through tbe session. t This amount tbe plaintiff has received, and we know of no reasoning by which bis right to recover in this suit can be sustained, which will not necessarily lead to tbe conclusion that every other officer of tbe legislature may sue tbe state and recover tbe value of bis services, notwithstanding be has received his per diem. Such a position however would scarcely be contended for.

Whether one of these officers who should be elected and discharge bis duties without any law in existence fixing tbe amount of bis compensation, could, in case tbe legislature should then make what be deemed an inadequate compensation, refuse to take it, and bring an action and recover what be could prove to be the value of bis services, it is not necessary to inquire. But here all tbe services of arresting and bolding these parties in custody, were' performed after tbe passage of tbe act fixing tbe amount of tbe officer’s pay. And it seems clear that in such a case tbe party must be t0 ^aVe assente<^ to provisions of the act, and to have performed the services upon the understanding that bis pay should be as therein prescribed.

The act of appropriation referred to in this case, appropriated to Mr. Massing $60, “ being payment in full for costs and expenses in serving subpoenas for different committees of the legislature.” Rbp.

Eor these reasons the plaintiff’s motion for judgment must be denied.