
    Calvin C. Gibson v. The City of Zanesville.
    Tn an action brought against a city by its mayor, to recover the costs taxed by him in his own favor in certain cases against persons charged with violating the ordinances of the city, in which cases such persons were fined, and in default of payment were sentenced to hard labor in the city prison, until such labor, at a stipulated rate, would amount to a sum equal to the fine and costs in such eases, and the persons were put to work in the city prison, and performed the required labor for the benefit of the city: Held, that this did not constitute a collection and appropriation by the city of the costs taxed in favor of the mayor in such cases, from which the law will imply a promise on the part of the city to pay the amount of such costs to the mayor.
    Motion for leave to file petition in error to reverse the judgment of the District Court of Muskingum county.
    The plaintiff in error was plaintiff in the court of common pleas, and his action was brought against the city of Zanesville, to recover costs that were taxed in his favor as mayor of the city, in a large number of cases in which persons were arrested for violating the ordinances of the city, and who were respectively convicted and fined, and in default of the payment of such fines, were each ordered to work out a sum equal to the fine and costs assessed against him, as below stated.
    The plaintiff alleged in his petition that the costs due to him, in all the cases named, had been collected by the city, and appropriated to its own use.
    On the trial, a bill of exceptions was taken, from which it appears that “it was admitted that the claim of the plaintiff was for costs claimed to be due the plaintiff as mayor of the city of Zanesville, in certain cases, in which parties were arraigned before said mayor of said city of Zanesville for a violation of the ordinances of the eity; that for each case for which costs were claimed the defendants wore adjudged by said mayor to be guilty; and that, in each case, the said defendants were adjudged to pay a fine and the costs taxed, including the costs taxed in favor of said mayor; and it was further admitted that, in each case, the defendants refused and neglected to pay the said fine and costs, and that thereupon the said defendants 'were required by the order of the said mayor to go, and did go, to the city prison, and were there required to remain at hard labor, and did there labor for a period of time, that in some cases at seventy-five cents, and in other cases at one dollar per day, as would amount to a sum equal to the said fine and costs; and it was further admitted that, within the limits of said city prison, the defendant had provided a place where .persons committed to said prison could be worked at breaking stone; that the defendant kept at said prison a person to superintend said prisoners while working, and used the stone so broken in the construction and repair of the streets and alleys of the said city of Zanesville ; and certain ordinances of the said city were introduced in evidence, certified copies of which are hereto attached and made a part of this bill of exceptions; and no further or other admissions were made by either party, and no other or further testimony was given by either party.”
    The court of common pleas rendered a judgment in favor of the plaintiff for the amount claimed. On error, the district court reversed this judgment. By this proceeding, the plaintiff in error seeks a, reversal of the latter judgment, on the ground that there was error in reversing the judgment of the court of common pleas.
    
      A. J. Andrew and Ball Hollingsworth, for the motion.
    
      A. W. Train, contra.
   Gilmore, J.

If the city of Zanesville is liable to its mayor for the costs sought to be recovered in this case, it must either be upon the ground (1) that there is some ordinance or law requiring the city to pay the same, or (2) that- the city has expressly or impliedly contracted or agreed to pay them out of its general revenues.

As to the first: From a copy of an ordinance made part of the record by the bill of exceptions, it appears that the yearly salary of the mayor of the city is fixed at one thousand dollars. It is not shown or claimed that there is any other ordinance of the city providing that he is to be paid by the city any additional compensation or fees for any official duty or service performed by him; nor are we aware of the existence of any law requiring the city to pay him any compensation or fees, in addition to what may be fixed by ordinance.

There is, therefore, no ordinance or law requiring the city to pay the plaintiff the costs for which the action below was brought.

As to the second: It is not claimed by counsel for plaintiff in error that there is an express agreement existing between the parties, whereby the city hound itself to pay the demand of the plaintiff; but, in effect, the claim is that the city collected and appropriated to its own use costs belonging to the plaintiff, from which the law will imply a promise to repay the amount so collected to the plaintiff, on demand.

It may be conceded that as between the mayor and the parties respectively prosecuted for violating the city ordinances, the mayor legally taxed the cost, including those taxed in ■ his own favor against them; and that if they had paid the costs, or the same had been made upon execution against them, the mayor could rightfully have retained his own costs. But from this it will not follow that the city is impliedly liable to the mayor for these costs because the parties fined were sentenced to hard labor in the city prison, until at a stipulated rate per diem the labor would equal the amount of the fine and costs in the cases respectively. Nor will such liability be implied from the further fact that the convicts in working out their sentences, broke stones which were taken and used by the city in the improvement of its streets. The prosecutions, sentences and labor were all had, imposed and performed in pursuance of law. None of the elements of contract were present in the proceedings—no parties—no consideration—no subject-matter of a contract. The sentence to the city prison at hard labor for violations of its ordinances, is a mode of punishment, and its continuance until at the stipulated rate per diem, it equals the amount of the fine and costs, is simply a mode of measuring or fixing the extent of the punishment, which it was within the power of the legislature of the state to propose, and the city council in its legislative discretion to accept and provide for ; and it was clearly the duty of the city council in accepting the proposition, to provide, as was done in this case, for making such labor either directly or indirectly beneficial to the city. But there being no obligation upon the city imposed by law, or created by contract, express or implied, to pay any portion of the value of such labor in liquidation of the costs of the mayor as claimed in this case, it follows that the city is not liable in this action, on the ground that it expressly or impliedly agreed to pay the mayor his costs in such cases.

But in addition, the law has provided how the receipts for such labor shall be applied.

The record shows that an ordinance was passed in 1874, by the city council, authorizing and establishing a workhouse ; ” and it is admitted on the record “ that within the limits of said city prison the defendant had provided a place where persons committed to said city pi’ison could be worked at breaking stone,” etc.; from which we assume without its being otherwise shown by the record, that the workhouse must have been established and conducted in pursuance of the provisions of chapter XX. of the municipal code, which was the only law then in force authorizing the establishment of workhouses. Section 280, which is a part of this chapter, provides as follows : The expense of maintaining and administering the affairs of said workhouse, over and above all receipts for the labor of persons confined therein, shall be audited and paid, from time to time, by the council of the corporation, and a tax for said expenses shall be levied and collected, as a part of the ordinary expenses of the corporation.” This is the only provision that the law makes for the disposition of the proceeds of such labor. It is, therefore, exclusive.

The proceeds of all workhouse labor must be deducted from the expense of maintaining and administering it, and it is only the balance of the expense, after such deduction, that can be collected by taxation. The law makes no exception as to the costs due to the mayor in such cases, and the courts can not legislate.

There is no ground upon which the plaintiff was entitled to recover in the court of common pleas, and the judgment in his favor in that court, was properly reversed in the district court.

Motion overruled.  