Miner v. Solano County

By the Court, Rhodes, J. The respondent urges that the complaint does not state facts sufficient to constitute a cause of action. The point is well taken. The allegation is that the plaintiff, as a Justice of the Peace, performed services, at the request of the District Attorney for that county, in cases wherein the people of the State were plaintiffs, to the amount of three thousand two hundred dollars, “ and that the defendant thereby became and is liable to pay the said sum.” There is no allegation of the means by which the county became liable. It is not alleged that the services were rendered for or were procured by the county, or [117]that the county received any benefit from their performance, nor is it stated that judgments were rendered in those cases, nor that the defendants in those actions have not paid or were unable to pay for the services.

This, in effect, disposes of the appeal; but as the defect might be remedied, if an amendment to the complaint should be permitted, it is proper to notice the point upon which the case would turn, upon the amendment being made.

The findings show that the services of the appellant were rendered in suits for the collection of delinquent State and county taxes, brought under the Revenue Act of 1861, and the *Acts amendatory thereof, and the Act of 1861, to legalize and provide for the collection of delinquent taxes; also, the Act of 1862, in relation to suits brought for the collection of delinquent taxes.

It is provided by section forty-six of the Revenue Act of 1861 that: “All officers-shall perform such services as might be required of them, under this Act, without the payment of fees in advance, * * # provided that no fees or costs shall be paid to any officer or District Attorney, unless the same be collected from the defendants.” This provision is evidently inconsistent with the general law (Act of April 12, 1859, p. 223,) which provides that in actions brought by the State of county, etc., fees shall not be required to be paid in advance, but shall become a charge, to be audited and allowed as other demands against the State or county, and therefore the provision in the Revenue Act must govern, in the cases provided for in that Act.

The appellant contends that the provisions of the Revenue Act prohibiting the payment of fees unless collected from the defendants is unconstitutional on several grounds, and among others, that it impairs the obligation of the contract between the G-overnment and the Justice. A Justice of the Peace is the only judicial officer who is permitted by the Constitution to receive fees of office to his own use. Fees are not regulated by the Constitution, but the whole subject is left to the control of the Legislature, and they may in their discretion