notes, or any of them, except one for $200, whereby plaintiff has sustained damage in the sum of $400; that about the day of July, 1877, the defendant, in violation of his agreement, entered upon the practice of his profession in the town of Adel, and still continues to so practice, whereby plaintiff has sustained damage in the sum of $600. The plaintiff demands judgment for $1,000. The defendant demurred to this peti

tion upon the following grounds:

First. That the facts stated in said petition do not entitle the plaintiff to the relief demanded, in this, that said petition sets forth a parol contract for the sale of office furniture, good will, and the turning over of collections on hand, with an agreement to not again engage in business, and states that the contract has been complied with, so far as the office furniture is concerned, and seeks to recover only for an alleged breach of that part relating to good will, the turning over of collections, and to not again engage in business in Adel.

Second. The petition affirmatively shows that said contract could not be performed within one year from the date thereof. Third. No consideration is alleged to have been paid for that part of the contract for the breach of which damages are claimed.

Fourth. The contract, or that part of it for the breach of which damages are claimed, is against public policy. The court sustained this demurrer. The plaintiff failed to further plead, and judgment was rendered against him for costs. The plaintiff appeals.

A. R. Smalley and M. C. Baugh, for appellant.

T. R. North, G. W. Clarke and White & Woodin, for appellee. DAY, J. 1. The judgment of the court does not show upon what ground the demurrer was sustained.

We think no damages can be recovered on account of the neglect of the defendant to turn over to the plaintiff the $4,500 of notes which the defendant had in his hands for collection. It is presumed that the defendant's clients selected him for the collection of these notes because they reposed confidence in his capacity and integrity, or for some reason desired him in preference to all persons else to perform this service The defendant had no right to substitute another for the performance of duty which he had agreed to discharge himself, and he could not, without the consent of his clients, bind them to accept the plaintiff to perform this service. If the notes had been turned over to the plaintiff by defendant, his clients could immediately have demanded and compelled their surrender. The

plaintiff must have known that in this part of the agreement the defendant undertook to do what he had no legal right to perform. For a breach of this part of the agreement damages are not recoverable.

2. Appellee insists that defendant's agreement not to engage again in the practice of law in Adel is against public policy and void. The defendant did not agree generally not to engage in the practice of law, but simply not to engage in the practice of law at Adel. A contract in restraint of trade as to particular places is valid. Hedge, Elliot & Co. v. Lawe, 47 Iowa, 135, and cases cited; Jenkins v. Temples, 39 Ga. 655; Chappel v. Brockway, 21 Wend. 157. In Holbrook v. Waters, 9 How. Pr. Rep. 335, it was held that an agreement upon sufficient consideration not to practice medicine, nor in any manner to do business as a physician, in the county of Oswego, at any time after the first day of May, 1851, was valid. In Bunn v. Guy, 4 East. 190, a contract entered into by a practicing attorney to relinquish his business and recommend his clients to two other attorneys for a valuable consideration, and that he would not himself practice in such business within one hundred and fifty miles of London, was held to be valid. See, also, Heichar v. Hamilton, 3 G. Greene, 596; S. C. 4 G. Greene, 317.

3. The point raised in the demurrer that the contract could not be performed within a year is not argued by counsel.. The petition alleges performance of the agreement on the part of the plaintiff. In Chery v. Hemming, 4 Excheq. 631, it was held that the provision of the statute of frauds, respecting contracts not to be performed in a year, applied only to contracts. not to be performed on either side, and not to a contract performed on one side within the year. See, also, Donellan v. Read, 3 B. & Ad. 899; Riddle v. Backus, 38 Iowa, 81; Blair Town Lot & Land Co. v. Walker, 39 Iowa, 406, and cases cited.

4. The petition alleges a sufficient consideration for the defendant's agreement not to engage in the practice of the law at Adel, and for a breach of this agreement the plaintiff is entitled to damages. It is urged, in the argument, that the petition is insufficient because it does not allege that the plaintiff is an attorney,. and it does not, therefore, appear that he could be benefited by the agreement. This objection is not raised in the demurrer, and cannot for the first time be presented here. In sustaining the demurrer generally the. court erred. Reversed.

LARKIN UPTON, Appellee, vs. THE COUNTY OF CLINTON,

Appellant.

Filed October 28, 1879.

While the mayor of a city is clothed with the powers of a magistrate and justice of the peace, there being no statute provision as to his compensation for services rendered in that capacity, he is not entitled for services as a magistrate to the fees allowed to a justice of the peace, for the same service. The right to fees for services rendered by an officer exists only by virtue of express statute.-[Ed.

Appeal from Clinton district court.

When this action was commenced the plaintiff was, and had been for a time previous, mayor of the city of Clinton, in the county of Clinton. As such mayor there was brought before him for trial a number of persons charged with violating the laws of the state-the specific offense being intoxication, which was not punishable under the ordinances of the city. For services rendered in these cases the plaintiff claims certain fees, which the defendant's board of supervisors refused to allow, and this action was brought for the purpose of enforcing payment for such services. Judgment was rendered for the plaintiff, and the defendant appeals.

J. H. Flint, A. R. McCoy and N. Corning, for appellant. Chase & Monroe, for appellee.

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SEEVERS, J. It is practically conceded, by counsel for the appellant, if the services rendered by the plaintiff had been performed by a justice of the peace the latter would have been entitled to the claimed compensation. The only question for determination then, is whether a mayor of a city who performs the duties of a justice of the peace in criminal actions, prosecuted in the name of the state, is entitled to the same compensation to be paid in the same manner as are justices of the peace whose compensation and mode of payment is fixed by statute. Section 506 of the Code provides that "the mayor of each city shall be a magistrate and conservator of the peace, and within the same have the jurisdiction of justice of the peace in all matters civil and criminal arising under the laws of the state *" This statute is not ambiguous, and its construction, extent and meaning can be readily understood. By its terms the mayor, by virtue of his office, becomes a magistrate, and has the jurisdiction of a justice of the peace; but it does not in terms require him to perform the duties of either, nor does it provide he shall have the compensation of a justice. It v3-6 (no. i)

(81)

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does not, in fact, provide he shall have any compensation whatever.

In criminal actions, if no compensation is provided, it is regarded as doubtful whether the mayor could be compelled to perform any duty connected therewith. No such question, however, is presented in the record, nor in relation to his compensation in civil actions, and, therefore, no ruling is made in relation thereto. We must not be understood, however, as intimating there is any distinction between the compensation of a mayor in civil and criminal actions; that is, that he may have statutory fees in one and not in the other. But one is before us, and with the other we have nothing to do.

Our attention has not been called to any statute making it the duty of mayors to perform the duties of justices of the peace in criminal actions, but we may, for the purposes of this case, concede there is such a statute. Without doubt, we think, fees and compensation of all officers, including mayors, are recoverable only under and by virtue of a statute. That is to say, what is termed to be statutory compensation is only so recoverable, and none other is claimed. There is no pretense that the amount sought to be recovered is a reasonable compensation for the services rendered, but that the plaintiff is entitled thereto because the statute so provides.

At the time Ripley v. Gifford, 11 Iowa, 367, was determined, because of a palpable omission by the general assembly there was no statute in force fixing the fees and compention of any county officer or of the clerk of this court. These several officers were required to perform certain specified duties, and yet it was held in that case that the clerk of the district court was not entitled to statutory compensation because there was no statute so providing, and that all he was entitled to was a reasonable compensation for any services he performed. The grave consequences which might result from such a state of things it was determined would not warrant the court in supplying the omission of the general assembly.

This case is fully applicable to the one at bar, unless there is a statute providing that mayors shall receive the same fees as justices of the peace from the county. See, also, Christ v. Polk County, April term, 1878. In our opinion there is no such statute. Section 3806 of the Code provides that certain fees of justices of the peace shall be paid by the county. But there is no such provision in relation to mayors. It was

competent for the general assemby to provide that they should be paid in some other way, or that their fees should be greater or less than those of a justice. Because a mayor is vested with the jurisdiction of a justice of the peace, it does not follow that he must have the same compensation, and be paid in the same manner. Fees and compensation of officers are fixed by statute, are arbitrary, and subject to the legislative will. We do not believe it was the legislative intent that mayors should perform the duties of justices of the peace without compensation. But, through a palpable and plain oversight and omission, none has been provided. This, however, will not warrant us in doing what the general assembly should have done, as was expressly held in Ripley v. Gifford, before cited.

Reversed.

ADAMS, J., dissenting. The Code provides that the mayor of each city shall be a magistrate. By this provision he is not simply clothed with the functions of a magistrate, but he is actually made one. This case differs from Christ v. Polk County, April term, 1878. In that case the plaintiff, as city marshal, had performed the duties of sheriff, or such duties as would otherwise have devolved upon the sheriff. But he did not perform the duties as sheriff. What he did, he did as city marshal. In the case at bar the services in question were not rendered by the plaintiff as mayor; and if not as mayor, they were not rendered by him in the character of any city officer.

A magistrate is not a city officer by virtue of his magistracy. It seems clear to me that the plaintiff cannot look to the city for compensation for services rendered otherwise than as a city officer; yet I am not willing to hold that the design was that he should have no compensation. It is true that he cannot recover except by virtue of some statute; but the statute provides for the compensation of justices of the peace. Now, in my opinion, it is not going very far to say that this provision was designed to afford compensation to all magistrates exercising the functions of justices of the peace. the absence of any other provision for the compensation of a magistrate exercising such functions it appears to me that that is the meaning. I think that the plaintiff is within the statute, and should be permitted to recover.

In