The plaintiff is the marshal of the defendant city. During his incumbency he duly arrested, on proper warrants, a number of persons who were duly convicted in the city court and adjudged to pay a fine and costs, including costs earned by plaintiff. Those defendants failed to pay the fine or costs and were duly imprisoned. The plaintiff demanded his fees of the defendant city, payment of which was refused, and , he then brought this action. The trial court rendered judgment for the city and he appealed.
The following agreed statement of facts was submitted to the trial court:
“It is admitted that at all the times hereinafter mentioned in the petition in the above case, that the defendant was, and now is, a municipal corporation, organized and existing as a city of the fourth class under the constitution and laws of the State of Missouri. That at the dates named in the petition in this case the plaintiff was the duly elected and qualified officer, being the city marshal of the city of Higgins-ville. It is admitted that they (the parties accused) were arrested, tried' and convicted and commitment issued for them, and that they served out in the calaboose their time for which they were committed. And that the convictions were under complaints filed by the city attorney of the city of Higginsville in the police court of the city of Higginsville. And that John Fortner, the plaintiff, as city marshal executed the writs mentioned in the petition. That these fees were demanded of the city and the city council refused to pay the same.’ ’
The defendant is a city of the fourth class and its charter is found in chapter 91, article 5, Revised Statutes 1899. By section 5918 the city has power to fix the compensation of its officers. By section 5933 the city is authorized to provide by ordinance for the conviction and punishment of offenders. And section 5934 gives authority to the city to cause persons convicted to be worked at the rate of one dollar per day until the whole *564number of days equals the number of dollars of the fine. And that “it shall be deemed a part of the judgment and sentence of the court that such prisoner may be worked.” It is provided by section 5938, that the city shall in no event be liable for costs or fees due any officer, “unless the defendant be convicted and committed.”
In pursuance of the foregoing charter authority, the city by ordinance fixed the compensation of the marshal at $45 per month and, in addition, certain fees, the same ‘ ‘ as are allowed by law to constables for like services to be taxed as costs in the case.” Ordinances were also enacted requiring convicted persons who failed to pay their fines to be imprisoned and put to work as contemplated by the charter, “until the whole amount of said fine, penalty and' costs, is worked out, or such judgment be complied with, or until he otherwise be discharged in due course of law.”
The view taken of the case by' the circuit court must be affirmed. The city, while providing by ordinance for certain fees for the marshal, did not provide that the city would, in any event, pay such fees. The charter power referred to above may be full authority for the city, if its lawmaking body saw fit to provide that-in instances where fines and costs are worked out by the prisoner, the city would pay the costs to the officers earning them. But authority to do an act, is, of course, not the act itself."
Again, while the charter and ordinances require that the defaulting prisoners shall be worked, the agreed statement above set out fails to show that in point of fact they were worked in the cases for which costs are sought to be recovered. The plaintiff’s case should fail for that reason, if there was no other.
But we take it that a part of plaintiff’s theory is, that when he earned his costs and the defendant was convicted and was unable, to pay the same, the city thereby became liable to him. "We think not. The char*565ter, as already stated, reads that the city shall not he liable for costs, unless the defendant be convicted. But we do not understand that to be an enactment that it is liable if he is convicted. The provision is mere authority whereby the city may provide hy ordinance for the payment of fees by it in cases of conviction. Such was the view taken of the same question by the St. Louis Court of Appeals in Kemp v. Monett, 95 Mo. App. 452.
Embraced within plaintiff’s objection to the judgment against him, is the contention that when the city worked the prisoners (as he assumes was done) it, in effect, received the fees for plaintiff. The case of Boucher v. Moberly, 74 Mo. 113, was similar to plaintiff’s case except in the important particular that the ordinances of Moberly provided that cost was to be paid to the officer earning it only when “it had been paid by the defendant in money or other current fund. ’ ’ The court held the city not liable. But in the course of the opinion the case of Gibson v. Zanesville, 31 Ohio St. 184, is commended and approved. And it was held in that case that, where the person convicted worked out his fine and costs in work for the city, it did not constitute an appropriation hy the city of the officer’s costs, from which a promise would be implied to pay such officer. That court took the view that the sentence to labor until, at a certain rate, it equalled the fine and costs, was hut a mode of punishment; and that the stipulated allowance, per day until it equalled the fine was but a measurement of the punishment.
The judgment is affirmed.
All concur.