122 P. 270 | Mont. | 1912
delivered the opinion of the court.
On February 1, 1912, the relator, a resident of the city of Butte, presented to the district court of Silver Bow county an accusation in writing, under oath, against Thomas J. Booher, police judge of said city, asking that he be summarily removed from office. After alleging that the city is a municipal corporation, and that said Booher is its police judge, the accusation charges: “ (B) That on or about the fifteenth day of May, 1911, there was filed before the said Thomas J. Booher, as police judge of the city of Butte, the complaint of the city of Butte, plaintiff, against Slemons & Booth, a corporation, defendant, a true copy of which is hereto annexed, marked ‘Exhibit A,' and made a part hereof; that the said defendant, Slemons & Booth, after having entered its plea of-‘not guilty’ to said complaint, was, after a trial on said complaint, on or about the sixteenth day of May, 1911, by the said Booher, as police judge aforesaid, adjudged guilty and fined, and adjudged to pay the sum of twenty-five ($25) dollars; that the said Slemons & Booth, a corporation, on or about the twenty-third day of May, 1911, appealed from said judgment to said district court, and filed with said Booher, as police judge, a bond in writing on appeal from said judgment to said district court, which said bond was approved in writing by the said Booher as police judge; that for said services rendered in approving said bond the said Booher, as police judge, did, on or about the eleventh day of July, 1911, charge and collect a fee from the said Slemons & Booth, a corporation, to wit, the sum of two ($2)''dollars; that said fee so charged and collected for said services rendered as herein set out was and is illegal.”
The charge proceeds upon the assumption that, in demanding and collecting a fee of $2 for the approval of an appeal bond in a case arising out of a violation of a city ordinance, the accused was guilty of a violation of the statute, supra, and has thereby become subject to removal from office.
It was pointed out in State ex rel. Rowe v. District Court, 44
The next utterance on the subject is found in sections 371 and 372 of an Act approved March 10, 1887 (Comp. Stats. 1887, Div. 5). The officer is designated therein as police magistrate. By section 371, he was given the jurisdiction generally of a justice of the peace in civil and criminal cases, and his jurisdiction over ordinance or city cases was made exclusive as theretofore. By section 372, he was compensated in full for services rendered the city in this class of cases by a salary fixed by ordinance and paid by the city. He was also declared entitled to receive the fees “which are or may hereafter be allowed justices of the peace in all civil cases and in criminal actions and proceedings arising under the laws of the territory, when acting as justice of the peace.” Here we first find him authorized to demand and collect for his own use such fees as were allowed to a justice. Section 371 remained substantially unchanged by subsequent legislation until the Act of March 13, 1895, the portions which are pertinent here being found in sections 4911 and 4912 of the Political Code of 1895 (Rev. Codes, secs. 3297, 3298). By these sections, the jurisdiction of the police judge was defined substantially as in the provisions of the Compiled Statutes, supra,? except that by section 4912 he was given exclusive jurisdiction of civil cases- to which the city was a party plaintiff or defendant. Section 372 of the Compiled Statutes, supra, which had been continued in force until passage of this Act, was supplanted by a section of the Act found in the Political Code of 1895 as section 4765. This section fixed the compensation as it was fixed
At the hearing, counsel, in his endeavor to justify the action of the district judge, made the contention that cases arising out of violations of city ordinances are civil cases; that they are included in the provision found in section 3241, supra, viz., “In addition, a police judge is entitled to receive in all civil cases the fees which are now, or may hereafter be, allowed justices of the peace, ’ ’ and that, since this is so, and since a justice of the peace is entitled to collect a fee for approving an appeal bond and furnishing the transcript, etc., in a civil case, Booher was entitled to charge the fee in question here. The least attention given to the legislation summarized above, however, must compel the conclusion that whatever may be the proper classification of such cases, under the head of civil, or criminal, or quasi criminal, the legislature has always put them in a class by themselves, to be disposed of by the police judge without fee or charge, either from the city or from a defendant. This being so, the further conclusion must follow that they are and were not intended to be covered by the expression “civil cases,” as used in the language quoted from the statute. The result is that Booher was not justified in demanding and collecting the fee in question here, and that the district court erred in refusing to hear evidence in
Tbe motion to quash tbe order to show cause is therefore overruled, and it is directed that tbe district court set aside its order dismissing tbe charge, and proceed to a bearing and judgment in accordance with tbe views herein expressed.