Deal v. Excise Bd. of Pontotoc Cnty.

• Decision Date: 26 January 1937
• Docket Number: Case Number: 26225
• Citation: 179 Okla. 73,64 P.2d 859,1937 OK 32
• Parties: DEAL v. EXCISE BOARD OF PONTOTOC COUNTY
• Court: Oklahoma Supreme Court

1937 OK 32

64 P.2d 859

179 Okla. 73

DEAL v. EXCISE BOARD OF PONTOTOC COUNTY

Case Number: 26225

Supreme Court of Oklahoma

Decided: January 26, 1937

Syllabus

¶0 1. JUSTICES OF THE PEACE - COUNTIES - Statutory Limitation on Amount of Fees to Be Paid to Justices by County per Quarter - County not Required to Provide Entire Sum for Fiscal Year.

Section 4160, O. S. 1931, is a direct limitation upon the amount of fees that may be paid by a county to any justices of the peace within any quarter or fiscal year, but is also permissive authority for an appropriation of that amount, subject to other limitations. However, there is no mandatory duty upon the county to provide this entire sum for any fiscal year.

2. SAME - County not Liable to Suit by Justice of the Peace to Recover Fees Where Appropriation Exhausted.

Where a county provides less for the payment of fees to justices of the peace than is allowed by section 4160, O. S. 1931, and any justice of the peace earns in excess thereof in conducting preliminary hearings, he may not recover such earned excess from the county by suit at law.

Appeal from District Court, Pontotoc County; J.F. McKeel, Judge.

Mandamus by C.S. Deal against the Excise Board of Pontotoc County. Judgment for defendant, and plaintiff appeals. Affirmed.

Hoyt Driskill, for plaintiff in error.

Mac Q. Williamson, Atty. Gen. (Frank B. Appleman, of counsel) and Randell S. Cobb, Asst. Atty. Gen., for defendant in error.

CORN, J.

¶1 This case originated in the district court of Pontotoc county, and is an appeal from the judgment of said court in favor of defendant in error, the excise board of the county of Pontotoc, against the plaintiff in error, C.S. Deal, denying the said plaintiff in error a writ of mandamus and the relief sought therein. For convenience we shall refer to the parties as they appeared in the trial court, that is, the plaintiff in error as plaintiff and the defendant in error as defendant.

¶2 The plaintiff was the duly qualified and acting justice of the peace for Ada district, for the quarter ending June 30, 1932. Section 4160, O. S. 1931, provides in part:

"In all cases where the fees prescribed in criminal causes for justices of the peace and constables are not paid by the defendant or complaining witness, the fees allowed by law shall be paid by the county; provided, that no such fees shall be allowed by the board of county commissioners until the justice of the peace or constable shall have filed an itemized statement, verified, that said fees have not and cannot be collected from any other source; Provided further, that the total amount of fees paid by the county to any justice of the peace or constable, shall not exceed one hundred ($100) dollars per quarter."

¶3 The plaintiff, not having received said fees from the defendants or complaining witnesses, in certain cases, complied with the provisions of the above statute and filed his claim with the county for $100. The parties herein stipulated that at the time these fees were incurred and at the time the claim was filed with the board of county commissioners of Pontotoc county, the appropriation made for such purposes was exhausted. An appropriation had been made to pay such fees for the fiscal year ending June, 1932, but at the time the fees involved in this case were incurred, and at the time the claim was filed, as aforesaid, said appropriation had been exhausted, and there was no appropriation out of which to pay plaintiff's claim.

¶4 Accordingly, on the 18th day of July, 1932, the board of county commissioners of Pontotoc county disallowed plaintiff's claim. Plaintiff then instituted an action in the justice of the peace court against the board of county commissioners and obtained a judgment against said board in the sum of $100, with costs in the sum of $325, on August 2, 1932.

¶5 The excise board having made no appropriation nor levied a tax to pay said judgment, the plaintiff filed an application for a writ of mandamus on September 1, 1934, to compel the excise board of Pontotoc county, defendant herein, to "appropriate the amount necessary to discharge said judgment in the sum of $103.25, together with the interest thereon accrued, and further directing and commanding said excise board to levy a tax against the taxable property, of said county sufficient to discharge said judgment."

¶6 On September 5, 1934, the trial court issued an alternative writ. September 15, 1934, the defendant filed its answer denying the allegations of the petition; denying that the justice of the peace is a governmental function; and denying that said justice of the peace was entitled to a judgment when the...