San Diego County v. Milotz

Citation300 P.2d 1,46 Cal.2d 761
CourtUnited States State Supreme Court (California)
Decision Date28 June 1956
PartiesCOUNTY of SAN DIEGO, Plaintiff and Respondent, v. W. F. MILOTZ, Jr., J. C. Perrigo, as Auditor and Controller of the County of San Diego and individually, American Bonding Company of Baltimore, a corporation, and St. Paul Mercury Indemnity Company, a corporation, Defendants and Appellants. W. F. MILOTZ, Jr., Cross-Complainant and Appellant, v. COUNTY of SAN DIEGO, Cross-Defendant and Respondent. L. A. 24051.

Parker, Stanbury, Reese & McGee, Raymond G. Stanbury, Los Angeles, James S. Lowrie and James B. Abbey, San Diego, for appellants.

James Don Keller, Dist. Atty., and Duane J. Carnes, Deputy Dist. Atty., San Diego, for respondent.

SPENCE, Justice.

This action originally was filed in the municipal court in San Diego County on November 19, 1952. Plaintiff county sought to recover from defendants Milotz, a court reporter; Perrigo, the county auditor; and the latter's two bonding companies reporter's fees alleged to have been illegally allowed and paid to Milotz. The municipal court entered a judgment of dismissal, after sustaining demurrers to the amended complaint without leave to amend. The judgment was reversed on appeal and the cause was remanded for further proceedings. County of San Diego v. Milotz, 119 Cal.App.2d Supp. 871, 260 P.2d 282. An amended complaint was then filed in the municipal court. Defendants filed answers setting up, among other defenses, the statute of limitations. At the same time defendant Milotz filed a cross-complaint, demanding $7,700 because of an alleged underpayment of salary. Since this amount exceeded the jurisdiction of the municipal court, the action was transferred to the superior court. Trial therein resulted in a judgment in favor of plaintiff county on its complaint for the sum of $1,319.55, and a judgment in favor of plaintiff county and against defendant Milotz on the latter's cross-complaint. All defendants appeal from the judgment in favor of plaintiff on its complaint; and, in addition, Milotz appeals from the adverse judgment on his cross-complaint.

Milotz was an official reporter of the municipal court in San Diego, duly appointed pursuant to former provisions of section 274c of the Code of Civil Procedure, now in substance contained in section 72194 of the Government Code. He entered into a series of contracts with the county of San Diego, purporting to fix his compensation as a reporter in the municipal court $400 per month salary plus the fees provided in section 274 of the Code of Civil Procedure for the transcription of proceedings in felony cases. The contracts were for the fiscal years 1949-1950 through 1952-1953. Between August 15, 1949, and September 18, 1951, Milotz, upon order of the presiding magistrate, reported some one hundred and thirty preliminary hearings in felony cases. In each case the transcript was filed with the county clerk, but the filing was not made within ten days after the close of the preliminary examination. Upon certification by the county auditor and following the directive of the presiding judge of the municipal court, Milotz was paid at the full rate ordinarily allowed for such reporting services. In addition, he received his monthly salary of $400.

The county sought to recover one-half of the several sums paid Milotz for the transcripts, claiming that under section 869 of the Penal Code he was only entitled to one-half of the ordinary rate for such reporting services, since he did not file the transcripts within the required time. In resisting the county's claims, defendants pleaded the bar of the statute of limitations applicable to an action for a penalty or forfeiture. Code Civ.Proc. § 340, subd. 1. Milotz also claimed, by way of cross-complaint, that his $400 monthly salary was an underpayment under the law, and he sought recovery of the difference between the amount paid and the amount to which he claimed to be entitled.

Defendants properly contend that plaintiff's action is 'upon a statute for a penalty or forfeiture' and is barred by section 340, subdivision 1, of the Code of Civil Procedure, which provides that 'an action upon a statute for a penalty or forfeiture, * * * except when the statute imposing it prescribes a different limitation', must be brought 'within one year' after the cause accrued. This action was commenced on November 19, 1952, and the date of the last challenged payment was October 16, 1951. Section 869 of the Penal Code, the statute involved in determining the propriety of the payments in question, prescribes no period of limitation. After providing for the reporting of testimony taken in preliminary examinations in felony cases before the municipal court, section 869 Continues: 'Fifth The reporter shall, within ten days after the close of such examination, if the defendant be held to answer the charge, * * * certify and file both said original and copy with the county clerk of the county, or city and county, in which the defendant was examined. The reporter shall, before receiving any compensation as such reporter, file with the auditor of the county his affidavit setting forth that said transcriptions have been filed with said county clerk within the time herein provided for. The compensation of the reporter for any services rendered by him as such reporter in any court of this State shall be reduced one-half if the provisions of this section as to the time of filing said transcript have not been complied with by him.'

'The term 'penalty' has a very comprehensive meaning. While often used as synonymous with the word 'punishment,' or as including a sum payable upon the breach of a private contract, it has also the more restricted meaning of a sum of money made payable by way of punishment for the nonperformance of an act or for the performance of an unlawful act, and which, in the former case, stands in lieu of the act to be performed.' 20 Cal.Jur. § 1, pp. 977-978; see 31 Words and Phrases, Penalty, p. 596; Powell v. Allan, 70 Cal.App. 663 672-673, 234 P. 339. Plaintiff's action comes within this concept, since it is based upon an alleged default or breach of duty on the part of Milotz in failing to file the transcripts in question within the required statutory time. For such delay it seeks to impose a penalty or forfeiture of fifty per cent of his otherwise payable compensation. 'Forfeiture' imports 'a penalty', Muldoon v. Lynch, 66 Cal. 536, 539, 6 P. 417, a 'requirement to pay the sum mentioned, as a mulct for a default or wrong.' People ex rel. Attorney General v. Reis, 76 Cal. 269, 277, 18 P. 309, 312; see Agudo v. County of Monterey, 13 Cal.2d 285, 289, 89 P.2d 400.

Section 869 of the Penal Code provides for a stated monetary punishment of the reporter by reason of his noncompliance with the filing time requirements and without any reference whatever to the question of damages. The purpose of the statute is clearly to provide for the prompt delivery of preliminary transcripts in felony cases in which a defendant is held to answer, and for noncompliance therewith an arbitrary pecuniary punishment is imposed. Plaintiff argues that the statute only raises the issue of overpayment if, despite the reporter's delay in performing his required services, the reporter is paid full, rather than half compensation, and accordingly the county is entitled to recover the excess amounts paid. County of Marin v. Messner, 44 Cal.App.2d 577, 112 P.2d 731; Aebli v. Board of Education, 62 Cal.App.2d 706, 145 P.2d 601. But the cited cases merely recognize the settled rule that compensation for official services depends entirely upon the law; that statutes relating to such compensation are strictly construed in favor of the government; that a public officer may only collect and retain such compensation as is specifically provided by law, and that any money paid by a governmental agency without authority of law may be recovered from such officer. 21 Cal.Jur. § 119, pp. 941-942; § 124, pp. 949-950. Defendants do not dispute that section 869 of the Penal Code should be strictly construed in determining the legality of reporter fees paid thereunder, but they properly contend that as so construed, a penalty or forfeiture should be recognizable in such statute and an action brought thereon is subject to the applicable period of limitations. Code Civ.Proc. § 340, subd. 1. The language of said section 869 clearly indicates the Legislature's intent to impose a penalty or forfeiture upon the reporter for his failure to file the transcript within the prescribed ten days, for he thereby suffers an arbitrary forfeiture of fifty per cent of what he would otherwise receive and without regard for any excuse for his delay in performance. In such circumstances, the statute must be held to provide a penalty or forfeiture for noncompliance, notwithstanding its use of the words 'shall have his compensation reduced.' 20 Cal.Jur. § 4, pp. 980-981; cf. Hansen v. Vallejo Electric Light & Power Co., 182 Cal. 492, 495, 188 P. 999; County of Los Angeles v. Ballerino, 99 Cal. 593, 596, 32 P. 581, 34 P. 329.

Plaintiff further argues that the doctrine of 'the law of the case' precludes defendants from insisting that section 869 of the Penal Code imposes a penalty or forfeiture. Disregarding the question of whether the doctrine would be applicable in these successive appeals despite the limited jurisdiction of the appellate court in the first appeal, 5 C.J.S., Appeal and Error, § 1829, subd. b. p. 1285; see Gore v. Bingaman, 20 Cal.2d 118, 121, 124 P.2d 17, and also the matter of harshness of the doctrine where rigid adherence thereto would produce an unjust result, see England v. Hospital of Good Samaritan, 14 Cal.2d 791, 795, 97 P.2d 813, the doctrine nevertheless would have no bearing here. While in reversing the judgment of dismissal entered upon the sustaining of demurrers to the complaint in this action as originally filed in the...

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