Harvey v. Tama County , 46 Iowa 522 ( 1877 )

Adams, J.

i servicesRTen^oii-*8" u-act. Section 771 of the Code provides, that “when a county officer receiving a salary is compelled by the pressure business of Ms office to employ a deputy, the fi°ar(i of supervisors may make a reasonable allow-anee gfujh deputy.” Where such an allowance is made by the board and the services are rendered afterwards it should be presumed that they are rendered in reference to the allowance, and no greater amount would be recoverable. But where no allowance whatever is made it seems to us that under ordinary circumstances a recovery should be had for what the services are reasonably worth. In Kinnie v. The City of Waverly, 42 Iowa, 437, the city council had omitted to fix the compensation, of the city attorney. We held that power to fix the compensation did not confer the power to withhold it, and that, as the council had omitted to fix the compensation, the city attorney, plaintiff in that case, was entitled to recover upon a quantum memdt. In such case the omission to fix the compensation should be regarded as an oversight.

In the case at bar the supervisors omitted to make an allowance to the deputy treasurer, but the circumstances as disclosed in the answer were such that the omission cannot be regarded as an oversight. Whether the deputy was emjjloyed by reason of the pressure of the business of the office, or for the personal accommodation of the treasurer, does not directly appear. It is evident, however, that if he was employed for the former reason he should be paid by the county, and if for' the latter he should be paid by the treasurer.

The agreement was that he was to be paid by the treasurer, and he was paid by him. No allowance having been made by the board, and the service having been rendered with knowledge of the fact, as we must presume, we think that no recovery can be had. Under the circumstances disclosed in the answer it is to be presumed that the board were justified in making no allowance. The demurrer to the answer should, we think, have been overruled.

Reversed.