Dwyer v. Parker
Before: Henshaw
Synopsis
Constitutional Law—Fee Act of 1895 — Fees of Justices and Constables — Limitation of Fees Retained—Supervision of District Attorney.—The provisions of the act of 1895 to establish the fees of county, township, and other officers, limiting the amount of fees to be retained by justices of the peace, and giving the district attorney supervisory power over the fees and bills of justices and constables, are unconstitutional and void.
Id.—Compensation of Officers—Classification of Counties—Mandatory Provision of Constitution.—Section 5'of article XI of the constitution, requiring the legislature to regulate the compensation of all county and township officers in proportion to the duties which they may perform, and providing that the legislature “for this purpose may classify the counties by population,’’construed with section 22 of article I, is mandatory, and provides as the sole mode for adjusting the compensation of officers, that it be adjusted in accordance with their respective duties under a classification of counties by population made for this purpose.
Id.—Justices of the Peace—Compensation and Fees, how Regulated —Fee Act—County Government Act. —The compensation of justices of the peace cannot be regulated in part by the fee act of 1895, but is governed wholly by the County Government Act of 1893, including the amount of fees which they are permitted to retain; but the fee act of 1895, though invalid in limiting that amount, still remains as a full and complete fee bill, and establishes what fees may be charged for, and collected by, justices of the peace, and by all county and township officers.
Id.—Supervisory Control of District Attorney—Uniform Operation of General Laws.—That portion of the fee act of 1895 which gives the district attorney a supervisory control over fees of justices and constables in criminal cases, is void, as being in conflict with section 11 of article I of the constitution, providing that “all laws of a general nature shall have a uniform operation,” as well as in improperly regulating the compensation of officers, in violation of section 5 of article XI.
Id.—Statutory Construction — Fee Act Void only in Part.—Where the court can see and say that an act, in the form in which it is left, with such parts excised as are obnoxious to the constitution, is still such an act as it may be presumed that the legislature would have passed had it known that such parts were void, the remainder, under well-settled rules of statutory construction, may stand; and under the application of this rule, the unconstitutional parts of the fee act of 1895 do not affect the remainder of the act.
Henshaw J. This action is in mandate. Plaintiff seeks to compel defendant, auditor of Santa Clara county, to draw his warrant upon the county treasurer in favor of plaintiff in the sum of one hundred and forty-one dollars for fees as justice of the peace, to which it is alleged plaintiff is legally entitled. By stipulation the parties agreed upon all matters of fact, and here present, as their controversy, the single legal ques-y tion of the constitutionality or unconstitutionality of an act of the legislature entitled “ an act to establish the [547]fees of county, and township, and other officers, and of jurors and witnesses, within this state.” (Stats. 1895, p. 268.)
This act of 1895 proceeded under the constitutional mandate to declare the fees which the various county and township officers throughout the state shall charge and collect for the performance of .official duties, but, as to justices of the peace and constables, it attempted to do something more than this. It not only established the fees ■which justices of the peace might charge and collect, but it limited the amount of the fees collected which they were allowed to retain, by providing as follows: “ Justices of the peace may, for their own use, collect the following fees and no others: .... For all services in a criminal action or proceeding, whether on examination or trial, three dollars; provided, however, that no more than the sum of seventy-five dollars in any one month shall be allowed out of the county treasury in misdemeanor cases to any one justice.” (Stats. 1895, p. 272.) The act likewise 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 cases in all cases or proceedings in which the district attorney has not, in writing, approved the issuance of the warrant of arrest.” There is also a proviso applying to constables, “that no mileage shall be charged for a warrant of arrest or criminal process served outside of his township, except such service be approved in writing by the district attorney.”
It is claimed by counsel for appellant that each of these provisions is unconstitutional; that they are inseparable parts of the whole act, which must therefore itself be declared invalid. While certain of these provisions have plainly no reference to justices of the peace, or to their fees, yet as the case of Haley v. Parker, S. F. No. 344, which involves the question of the legality, of this act, and of its provisions regarding constables, has been submitted with the case now under review, under stipulation that the determination of one shall
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