By the Court,

It is not necessary to consider the errors separately, as the solution of one question will decide this case. That question is this: Whether the district prosecutor can commence and maintain a suit, in the District Court of Jackson county, for his services, against the county commissioners of that county.

*222The 5th section of the “ Act for the appointment of district prosecutors, and defining their duties,” enacts, “ that the said district attorneys shall receive such compensation for their services as the board of county commissioners of their respective counties, shall from time to time, deem proper, either as an annual salary, or by making payment on the bills for services rendered.” This section contemplates an exercise of the discretion of the county commissioners ; not only as to the amount of compensation, but as to the time of payment.

It is left to their discretion as to the amount; for it provides that “ the district prosecutor shall receive such compensation, as the board of commissioners shall deem proper,” and also, as to the time, for it further provides, that the compensation may be as an annual salary, or by making payment on the bills for services rendered, as they (the commissioners) shall judge best.

This suit, as appears from the declaration, was brought for the services of the district prosecutor, at the October term, 1840, of the District Court for Jackson county : and there is no averment of a neglect on the part of the county commissioners to act in the premises ; no averment of a demand. Would it not be a sufficient compliance with this statute, if the commissioners would make an allowance to the district prosecutor, as the salary for a year, commencing after a specified time ? We think it would. If so, can the prosecutor bring an action for a weeks service ? If he can, then that part of the statute which says that they may make him the allowance as an annual salary, or upon bills rendered, as they may deem proper, would be a nullity ; for, by bringing suit for one weeks service, and recovering the value thereof, he takes away the discretion vested by law, in the commissioners, both as to the amount of compensation, and as to the time of payment. In the act referred to, no provision is made for a review of their decision in the District Court.— The 4th section of the act “ organizing a board of county commissioners in each county in the Territory of Iowa,” is relied on by the plaintff in . error, as authorizing the institution of this suit. This section, after enacting that the board of commissioners may sue in their corporate name, provides that the board “ may in like manner, by and under their corporate name and style, be sued by any person or persons having any mariner of claims against said county.” This statute was passed Dec. 14th, 1838, and the statute in reference to the district prosecutor, which vests the discretion in the board of county commissioners, was passed, Jan. 15th, 1839, That these statutes conflict, no one will deny ; and if *223so, then the last must stand ; espeeially as It refers to the particular case, while the other is general. Whether the discretion vested in the commissioners is of that absolute character, as to preclude the right of a rehearing in the District Court, either by an appeal under the general provision allowing appeals frojg the decisions of the boards of county commissioners, by persons aggrieved by such decisions, er upon a mandamus to such board ; whether the discretion vested in the county commissioners, is such a discretion as a court may exercise, in regulating its proceedings; or whether the county commissioners are bound to allow a reasonable compensation, such as a reasonable man would think the prosecutor ought to have for his services, it is not necessary in this case to decide, as the questions are not presented by the record.— We decide all the questions presented in this case, when we- say, that the discretion of the commissioners must be first exercised in reference to the matter, and that the 5th sec. of the act in reference to district prosecutors, precludes the idea of their commencing suit against the county commissioners in the District Court, by declaration and,summons.

The judgment below is affirmed.