Martineau v. Crabbe

• Citation: 46 Utah 327,150 P. 301
• Decision Date: 29 June 1915
• Docket Number: 2791
• Court: Utah Supreme Court
• Parties: MARTINEAU, Justice of the Peace, v. CRABBE et al., Board of County Commissioners

150 P. 301

46 Utah 327

MARTINEAU, Justice of the Peace, v. CRABBE et al., Board of County Commissioners

No. 2791

Supreme Court of Utah

June 29, 1915

Application for writ of prohibition by L. R. Martineau, Jr. Justice of the Peace, against A. H. Crabbe and others, Board of County Commissioners of Salt Lake County.

WRIT DENIED.

Ray Van Cott for plaintiff.

Harold Fabian and Herbert Van Dam, Jr., Assistant County Attorney for defendant.

McCARTY J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

STATEMENT OF FACTS.

This is an application by plaintiff, L. R. Martineau, Jr., for a writ of prohibition against defendants, the county commissioners of Salt Lake County. The action involves the validity of chapter 108, Session Laws Utah 1915, which is as follows:

"An act amending section 544, chapter 5 of the Compiled Laws of Utah, 1907, relating to justices of the peace and constables in cities of the first class, and providing that causes of action arising within the limits of such cities be commenced and tried before such justices, fixing the qualifications and salaries of such justices, providing for a clerk and deputy or deputies and for the disposition of the fees of such justices' courts.

"Be it enacted by the Legislature of the state of Utah:

"Section 1. That section 544, chapter 5 of the Compiled Laws of Utah, 1907, be, and the same is hereby amended to read as follows:

"The officers of a precinct are one justice of the peace and one constable, except as otherwise herein provided. The board of county commissioners, as public convenience may require, shall divide their respective counties into precincts for the purpose of electing justices of the peace and constables: Provided, that cities of the first class of 40,000 or more inhabitants, shall not be divided into precincts for the purpose of electing precinct officers, but such cities shall be deemed one precinct for the purpose of electing two justices of the peace and two constables therefor, and that cities having a population of more than 15,000 and less than 40,000 inhabitants shall be deemed one precinct for the purpose of electing one constable therefor and for the purpose of providing a justice of the peace, therefor, but no justice of the peace shall be elected therein, and the municipal judge of such cities shall be ex officio precinct justices therefor: Provided further, that no person shall act as justice of the peace in cities of the first class unless such person has first been regularly admitted by the Supreme Court of Utah to practice as an attorney at law in the courts of this state.

"That within thirty days after the passage of this act, it shall be the duty of the county commissioners of the county within which cities of the first class of 40,000 or more inhabitants are located to appoint one justice of the peace and one constable to serve in such cities until the next ensuing general election, and until their successors are duly elected and qualified.

"That all causes of criminal action, arising within the limits of cities of the first class of 40,000 or more inhabitants and over which justices of the peace have jurisdiction, shall be brought before the respective justices of the peace in and for such cities of the first class where the causes of action arise: Provided, however, that nothing in this section shall be construed to restrict or in any way affect the jurisdiction of any city or municipal court as at present constituted.

"The annual salaries of justices of the peace in cities of the first class of forty thousand or more inhabitants shall be twenty-four hundred dollars each, payable monthly out of the county treasury of the county in which such cities are located.

"All acts and parts of acts in conflict herewith are hereby repealed.

"The county commissioners of the respective counties within which cities of the first class of forty thousand or more inhabitants are located, shall appoint a clerk of the court of the justice of the peace and such deputy clerks as they may deem necessary, and shall fix the compensation of such officers.

"It shall be the duty of the clerk of said court to act as custodian of all the files, papers, indexes and dockets of justices of the peace within said cities of the first class, and the said clerk shall be responsible for the care and safe keeping of all such records and shall collect all fees as provided by law for justices of the peace and shall turn the same into the country treasury monthly.

"This act shall take effect upon approval.

"Approved March 22d, 1915."

It is admitted that plaintiff was on November 3, 1914, duly elected to the office of justice of the peace for Salt Lake City precinct, and that on January 4, 1915, he duly qualified and entered upon the administration of the duties of the office and ever since has administered, and still continues to administer, the same. It is also admitted that defendants, as county commissioners, in pursuance of the provisions of the foregoing enactment, at a meeting held on April 14, 1915, appointed Brigham Clegg to the office of justice of the peace for Salt Lake precinct and one Clifford Naylor to the office of "clerk of the court of justice of the peace" for said precinct, said appointees to hold and to continue in said office until the next general election and until their successors are duly elected and qualified. Plaintiff, however, alleges that on March 8, 1915, the date of the final passage of chapter 108, known as "Senate Bill No. 200," the "emergency clause" was stricken out, and that the enactment thereby did not take effect immediately upon approval, and that the same could not take effect until May 11, 1915, sixty days after the adjournment of the session of the Legislature at which the enactment was passed. It is further alleged that the defendants, as county commissioners, "will on or after the 11th day of May, 1915, upon discovery of the fact as to when said pretended enactment takes effect, proceed to appoint some persons to the respective offices hereinbefore set forth, * * * and will require the clerk of said court to collect all fees as provided by law for affiant (plaintiff) and * * * to turn the same into the country treasury monthly * * * and will seek to compel affiant to accept the salary prescribed in said enactment as full compensation for the performance of his duties as such justice of the peace unless prohibited," etc., from so doing.

McCARTY, J. (after stating the facts as above).

The first question presented relates to the "emergency clause" of the act in question, which provides that "this act shall take effect upon approval." It is contended that the Senate Journal shows that this clause was stricken from the act just before its final passage, and that therefore, under section 25, art. 6, of the Constitution, the enactment did not take effect until May 11, 1915, 60 days after the adjournment of the Legislature. This section of the Constitution provides that:

"All acts shall be officially published, and no act shall take effect until so published, nor until sixty days after the adjournment of the session at which it passed, unless the Legislature by a vote of two-thirds of * * * each house shall otherwise direct."

It is contended on behalf of defendants that the act containing the emergency clause, having been engrossed, approved, signed, enrolled, and deposited with the secretary of state, implies absolute verity and should be accepted as the very bill adopted by the Legislature, and that the journal of the Legislature cannot be looked to for the purpose of attacking the manner of its enactment. While a question is thus presented that is not free from doubt, it is nevertheless, so far as the issues here involved are concerned, academic only. One of the essential allegations of the petition by which the action of this court is invoked in this proceeding is:

"That defendants will on and after the 11th day of May, 1915, upon discovery of the fact when said pretended act takes effect, proceed to appoint some persons to the respective offices," mentioned in the act.

The prayer of the petition is in part as follows:

That the defendants "be absolutely and forever restrained and prohibited from taking any further proceedings in said * * * matter, or doing any of the acts or things hereinbefore complained of," etc.

It will thus be observed that the action of this court is invoked to prohibit defendants from doing certain things set forth in the petition, and not for the purpose of reviewing and correcting some alleged error based on a past transaction. The office and function of the writ of prohibition is to--

"arrest the proceedings of any tribunal, corporation, board or person * * * when such proceedings are without or in excess of the jurisdiction of such tribunal," etc. Comp. Laws 1907, section 3654.

"The writ, * * * as its name imparts, is one which commands the person to whom it is directed not to do something by which, by the suggestion of the relator the court is informed he is about to do. If the thing he already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act." Spelling, Ext. Relief, Sec. 1720.

In High's Ext. Legal Rems, section 766, the author says:

"Another distinguishing feature of the writ is that it is a preventative rather than a corrective remedy and issues only to prevent the commission of a future act and not to undo an act already performed."

See, also, 32 Cyc. 603.

Therefore the allegation in the petition that defendants, on the 14th day of April, A. D. 1915, in pursuance of the act in question, "did appoint one Brigham Clegg to the alleged office of justice of the peace * * * and one M. W. Earl to...