5 Or. 160 | Or. | 1874
By the Court,
The respondent is police judge of the city of Portland, and has the jurisdiction and authority of a justice of the peace for the county of Multnomah within the limits of the city of Portland. While exercising the jurisdiction and authority of a justice of the peace in the trial of criminal actions prosecuted under the general laws of the State, he has received fees for services amounting in • the aggregate to $8289.60.
It is claimed by appellant that these fees should have been paid into the city treasury, and respondent having failed to do so, this action is brought by the city to recover them.
The office of police judge is created by a special and local act of the Legislature under which the city of Portland is incorporated. By § 155, “the police judge has jurisdiction of all crimes defined by any ordinance of the city of Portland, and of all actions brought to enforce or recover any forfeiture or penalty declared or given by any such ordinance.” By \ 156, it is provided that “the police judge has the jurisdiction and authority of a justice of the peace for the county of Multnomah, within the limits of the city of Portland, in criminal matters, and shall be subject to the general laws of the State prescribing the duties of a justice of the peace and the mode of performing them.” In the case of The State v. Wiley, this section was construed by
But the fact that § 160 has reference to the compensation to be received by the police judge for services performed in that capacity solely, and not as justice of the peace, is made still more apparent by § 178, which provides that “the police judge, when acting under or enforcing the laws of the State, shall be entitled to tax the same fees and compensation as a justice of the peace.”
Mr. Justice-Upton, in discussing this point in the Circuit Court, very appropriately said: “As the defendant acts in two distinct capacities, counsel differ as to what services are referred to in the section first above quoted. As police judge, his powers are created and defined by this special and local act. As a justice of the peace his jurisdiction and
Again he says: ‘ ‘ The defendant, as justice of the peace, being authorized by the general laws of the State to receive fees for services, must retain that right, unless the language of £ 156 is to be construed either to prohibit him from receiving them or to compel him to pay them into the treasury after he has received them. If it was intended that he should pay them into the treasury after receiving them, it is a very indirect mode of expression to say he should not receive them. And it is still more inconsistent with such construction that the same act should speak of these fees as compensation, and declare the defendant ‘entitled to tax fees and compensation,’ without a suggestion of paying them into the city treasury, or of any purpose or object different from that indicated by the general laws of the State.
“If we treat the salary as compensation for the services rendered as police judge, and the justice’s fees as compensation for services rendered as justice of the peace, all the supposed contradictions disappear, and I think the act may
“That construction necessarily follows, if it is conceded that § 160 refers to the services of the police judge performed in that capacity, and not as a justice of 'the peace. With this concession the several parts of the act harmonize and the whole act conforms to the Constitution; otherwise, its provisions are conflicting.”
There is a general law of the State providing how costs taxed and fines and penalties imposed by justices of the peace shall be disposed of. This general law must apply to the respondent as a justice of the peace, and dispose of all costs taxed as therein provided, unless repealed, of unless the general laws of the State do not apply to him as to other justices of the peace. If he is a justice of the peace, within the meaning of the Constitution, as held in Stale v. Wiley, he must be one within the meaning of the general laws concerning justices of the peace passed under the Constitution.
The general law not being repealed, it applies to him when acting as a justice of the peace the same as it applies to every other justice in the State.
The judgment of the Circuit Court, sustaining the demurrer, should be affirmed.