In re Small Claims Department of Justice Court of Lawrence Johnston
| Citation | 256 P. 102,44 Idaho 228 |
| Decision Date | 29 April 1927 |
| Docket Number | 4497 |
| Parties | In re SMALL CLAIMS DEPARTMENT OF THE JUSTICE COURT OF LAWRENCE JOHNSTON, a Justice of the Peace of Boise Precinct, Ada County, Idaho, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF ADA COUNTY, STATE OF IDAHO, Respondent |
| Court | United States State Supreme Court of Idaho |
APPEAL AND ERROR - CLERICAL ERROR IMMATERIAL - JUSTICE OF THE PEACE - SMALL CLAIMS COURT - SALARY ALLOWANCE - DISCRETION OF COUNTY COMMISSIONERS.
1. On appeal to district court from order of county commissioners disallowing claim of justice of the peace, error in stating date of order was immaterial, where it appeared that no one was misled thereby and there was no other order in the cause, and that it was otherwise sufficiently specified in other papers and notice.
2. Under Laws 1923, chap. 177, sec. 3, allowance of salary to justice of the peace for conducting a small claims department was discretionary with board of county commissioners, since under C. S., sec. 3710, only compensation allowed justice of the peace prior to act creating small claims courts was in form of fees.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.
Appeal from judgment of district court dismissing appeal from order of board of county commissioners disallowing claim of justice of the peace for moneys expended and refusing to fix any salary for conducting small claims department. Affirmed.
Judgment affirmed, with costs to respondent.
J. C Johnston and Gustave Kroeger, for Appellant.
As the creation and organization of the "Small Claims Department in the Justice Court" is mandatory, it left no discretion with the justice of the peace to refuse "to create and organize in his justice court" a "small claims department," because the legislature used the word "shall," which is mandatory and admits of no discretion to be exercised by the justice of the peace. (Black on Interpretation of Law, p. 543, sec. 154; Sutherland on Stat. Const., p. 1149, sec. 635.)
"Where power is given by statute to a public officer in permissive language, as that he 'may' do a certain thing, the language used will be regarded as peremptory, if the public interest or individual rights require that it should be so construed." (State v. Title Guaranty & Surety Co., 27 Idaho 752, 152 P. 189; 36 Cyc., p. 1169; People v. Board of Supervisors of Livingston County, 68 N.Y. 114; Territory v. Nelson, 2 Wyo. 346.)
"It was not intended by the legislature that the action of the board of commissioners should be final, or that such board might act arbitrarily, through whim or caprice."
"A discretion contained in a statute, though couched in merely permissive language, will not be construed as leaving compliance optional, when the good sense of the entire enactment requires its provisions to be deemed compulsory." (2 Sutherland, Stat. Const., p. 1150, sec. 636; p. 1151, sec. 637; People v. Macomb County Supervisors, 3 Mich. 475; Supervisors v. United States, 4 Wall. (U. S.) 435, 18 L.Ed. 419.)
"Where power is given by statute to a public officer in permissive language--as that he 'may' do a certain thing--the language will be regarded as peremptory, if the public interests or individual rights require that it shall be so construed." (Ralston v. Crittenden, 13 F. 508.)
"No formal pleadings are required in presenting a claim, and the claim is not to be adjudged by the rules governing pleadings." (15 C. J., p. 649, sec. 363; Gibson v. Sherman County, 97 Neb. 79, 149 N.W. 107; Thomas v. Douglas County, 13 S.D. 520, 83 N.W. 580; Board of Commrs. of Dubois County v. Wertz, 112 Ind. 268, 13 N.E. 874; Black v. Saunders County Commrs., 8 Neb. 440, 1 N.W. 144.)
Laurel E. Elam and Carl A. Burke, for Respondent.
The appeal was not properly prosecuted from the order of the board of county commissioners to the district court in that notice of appeal did not refer to the act, order or proceeding so as to identify it. (C. J. 1225; C. S. 3510.)
The claim of appellant for salary under chap. 177, p. 272, Sess. Laws 1923, was addressed to the discretion of the board of county commissioners. (Sess. Laws 1923, chap. 177; 1 Words and Phrases, 4421; Barton, v. Schmershall, 21 Idaho 562, 122 P. 385; Lee v. Stevens, 22 Idaho 673, 127 P. 680; Surrage v. McKay, 60 Utah 117, 206 P. 722.)
County commissioners will not be disturbed where it is not affirmatively shown that the discretion vested in them has been abused. (Reynolds v. Board of County Commrs., 6 Idaho 787, 794, 59 P. 730; Gardner v. Blaine County, 15 Idaho 698, 99 P. 826.)
Budge, J., took no part. Givens, J., disqualified.
Lawrence Johnston, a justice of the peace for Boise precinct, filed his verified claim against Ada county April 14, 1924, for services rendered in conducting a small claims department in the justice court, November 26th to April 12th, 20 weeks, in the sum of $ 500, together with an affidavit attached showing the amount and character of the work of the small claims department of said court, and praying that he be allowed a salary of $ 100 per month for conducting said small claims department.
The claim and request to have a salary fixed by the board were disallowed by the board of county commissioners on May 14, 1924. The notice of appeal to the district court was filed May 15, 1924, is appropriately entitled, and recites that the appeal is from an "order of said Board of County Commissioners made and entered in said matter upon the 14th day of April, 1923, disallowing and rejecting and refusing to allow to said Small Claims Department and Court and to said Justice of the Peace, to-wit: Lawrence Johnston, who organized and conducted the same, the money paid out to a Clerk . . . . and in rejecting and refusing to allow said Justice of the Peace any salary for organizing and conducting said small Claims Department, etc."
The acknowledgment of service by the clerk of the board of county commissioners shows service on April 15, 1924. The respondents moved in the district court to dismiss the appeal upon several grounds, but principally for the reason that the notice of appeal specifies an appeal from an order dated April 14, 1923, and no such order appears in the record. Appellant filed an affidavit showing that the notice of appeal was in fact served on the clerk May 14, 1924. The indorsements on the claim show that it was filed April 14, 1924, and disallowed on May 14, 1924. It is apparent that there was a clerical error in stating the date of the order in the notice of appeal. This error is immaterial, it appearing that no one has been misled thereby (Price v. Western Loan & Savings Co., 35 Utah 379, 19 Ann. Cas. 589, 100 P. 677), that there is no other order in the cause ( Paul v. Cragnaz, 25 Nev. 293, 59 P. 857, 60 P. 983, 47 L. R. A. 540), and that the order is otherwise sufficiently specified in the other papers and notice ( Foss v. Johnstone, 158 Cal. 119, 110 P. 294). (See 3 C. J., sec. 1327, p. 1225.)
(Robinson v. St. Maries Lumber Co., 32 Idaho 651, 186 P. 923.)
The questions raised by appellant's assignments of error are based upon the interpretation to be given an act of the legislature approved March 15, 1923. The portions material to a determination here read as follows:
" . . . Said justice of the peace shall collect in advance upon each claim the sum of One dollar, and this shall be the only fee for such justice of the peace to be charged or taxed against the plaintiff in such action during the...
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