#### John M. Kreader v. City of Fremont.

Filed September 17, 1903.

No. 13,091.

Municipal Corporation: Liability: Fees. Fees of officers and witnesses for services rendered in a prosecution for the violation of an ordinance of a city, either in police court or in district court upon appeal, can not be collected from such city, unless their payment by the city is required by statute or by ordinance authorized by statute.

Error to the district court for Dodge county: Conrad Hollenbeck, District Judge.

*Affirmed.*

*Courtright & Sidner*and *G. G. Martin,*for plaintiff in error.

*E. F. Gray*and *G. E. Abbott, contra.*

Glanville, C.

The defendant in error is the sheriff of Dodge county, and, as such, served papers in a case pending .in the district court for that county, wherein a certain defendant was being prosecuted for the violation of an ordinance of the defendant city, the case being there upon appeal from police court. He also took assignments of certain fees claimed by the clerk of the district court, sundry witnesses who had appeared for the prosecution in the police court and in said district court, and the fees of the police judge of defendant city, all these fees being claimed in connection with the same prosecution. He filed his claim Avith the city council, and, upon its disalloAvance, appealed to the district court where issues were joined, and trial proceeded through the introduction of evidence on behalf of the plaintiff in error; whereupon the court instructed a verdict for the defendant in error, and the case is before us upon such assignments requiring us to pass upon the correctness of such instruction.

The only question necessary for us to pass upon is the one touching the liability of the defendant city for the payment of these fees, or any of them.

*763It is the law of this state that such prosecutions are criminal actions, and must.be carried on in the name of the state; any fines collected as a result of such prosecutions go to the school fund, and the city, for the violation of whose ordinances the state is prosecuting, is not a party to the action.

No statutory provisions have been called to our attention, and, in fact, none exist in this state, fixing a liability - for such fees as are herein sued for upon the municipality whose ordinance forms the basis of the prosecution.

It is a well known proposition of law, too thoroughly established to require argument or citation of authorities, that, unless provision is made by statute for the compensation of members of society and public officers Avho are required to perform duties in assisting the state to maintain order and prosecute violators of its laws, they may not demand compensation for such services; that as members of society this duty may be placed upon them without compensation, and as public officers, if the duty is required and no compensation fixed by law therefor Avith provision made for its payment, the fees or salaries alloAved such officers in other respects are supposed to be their compensation for such services rendered.

Such being the law, and there being no statutory liability fixed upon the defendant city, it follows that the judgment of the district court is right and should be affirmed.

We therefore recommend that the judgment of the district court be affirmed.

Barnes and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is

Affirmed.