Kiernan v. Swan

HAYNES, C.

This is an agreed case submitted under section 1138 of the Code of Civil Procedure. The defendant had judgment and the plaintiff appeals.

The plaintiff is a constable in Stanislaus county, and performed services as such in criminal cases, for which he is entitled to compensation; and the question is whether such compensation is fixed by the act of 1895, establishing fees of county, township, and other officers (Stats. 1895, p. 269), or whether he is entitled to compensation under the County Government Act of 1893. (Stats. 1893, sec. 196, subd. 14, p. 481.) The board of supervisors allowed his claim under said County Government Act, and the defendant, who is county auditor, declined to audit the demand, claiming that plaintiff’s fees were fixed by said act of 1895.

The court below held that the constable was entitled to the fees in criminal cases provided in said act of 1895, “so far as such act regulates the fees to be collected for specific services, but not so far as such act limits the amount of fees to be collected in any one month,” and gave judgment for the defendant.

A statement of the services rendered and the charges made therefor is made a part of the agreed case, and shows services rendered from May 4th to May 14th, inclusive, amounting to eleven dollars and thirty cents, all in cases of misdemeanor.

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The demand for said services was made July 6th, and allowed by the board of supervisors July 11th.

The charges made by plaintiff for making arrests was two dollars, and for mileage in going to place of arrest thirty cents, and for returning with prisoner thirty cents per mile. The County Government Act of 1893, in counties of the thirty-fourth class, in fixing the compensation of officers, provides: “Constables, such fees as are now or may be hereafter allowed by law.” (Stats. 1893, sec. 196, subd. 14, p. 481.)

The said act of 1895 (Stats. 1895, p. 271) fixes the fe'es of constables “for arresting prisoner and bringing him into court, one dollar,” and “for each mile necessarily traveled within his county in executing a warrant of arrest, both in going and returning from place of arrest fifteen cents.” Said aat of 1895, however, provided that in criminal cases the.constable shall not receive more than one hundred dollars in any month, and not more than one thousand dollars in any one year; and it further provided, “that the board of supervisors may reject all bills presented to the county by justices of the peace and constables for fees in criminal eases in all cases of proceedings in which the district attorney has not, in writing, approved the issuance of the warrant of arrest.”