Timmony v. Salt Lake City ( 1904 )

BASKIN, C. J.,

This action was brought by Ar-villa Timmony, administratrix of the estate of John B. Timmony, deceased, to recover from Salt Lake City certain fees which said John B. Timmony, as city justice of the peace .of said city, is alleged to have earned in trying a number of poll tax cases brought before him by the city against various citizens between the dates of October 5,1898, and November 11,1900. The undisputed facts of the case are as follows: During all the times between October 5,1898, and November 11,1900, said John B. Timmony was the duly elected, qualified, and acting city justice of the peace of Salt Lake City, receiving from said city for his services in said office a salary of $1,000 per annum, which salary was fixed by an ordinance of said city passed September 25, 1897. During the period mentioned, the city, proceeding under the authority of an ordinance concerning poll taxes, brought upwards of 500 suits against various delinquents before said City Justice Timmony to collect said taxes. In a few suits the delinquents paid after suit was commenced, and Mr. Timmony received his fees out of such payments. In a great number of suits nothing was ever collected, and for those suits Mr., Timmony received nothing. The fees taxed in the suits where nothing was ever collected, reckoned according to the statutory schedules of justice fees, aggregate the sum of $973.75. For this sum, together with interest, the total aggregating $1,204, plaintiff recovered judgment against- the city. From this judgment the appeal is taken.

By an act of the Legislature of the State it is provided that. “Two days’ work of eight hours each, or in lieu thereof $3.00 in lawful money, is an annual road poll tax upon every man over 21 years, and under 50 years of age, not physically incapacitated to work, and not exempt by law. Within incorporated cities or towns said poll tax may be collected and expended under such regulations ás may be by ordinance prescribed. ’ ’ Rev. St. 1898, sec. 1743. By an ordinance of the city it is provided that: “The supervisor of streets shall notify persons liable to the tax to perform the required work, and if such persons fail to perform such work or pay the tax within ten days after the time appointed in the notice, the tax is delinquent, and then payable in money, and the supervisor of streets, as such, must proceed to collect the same as an action of debt in any court having juridiction.” The act of the Legislature creating the office of city justice of the peace provides for the election of a city justice of the peace, who shall have exclusive original jurisdiction of eases arising under or by virtue of the violation of any city ordinance, and shall have the same powers and .jurisdiction as justice of the peace in all other actions, civil and criminal. The city justice shall receive such salary for his services while exercising jurisdiction under the ordinances and by-laws of the city as may be prescribed by the ordinance. The annual salary of the •city justice of the peace was fixed by city ordinance at $1,000. All of the foregoing provisions of the Revised Statutes and city ordinances were in force during the incumbency of the said John B. Timmony. Section 978, Rev. St. 1898, which was also in force during the said incumbency, provides that “every justice of the peace may for his own use collect the following fees, and none other. ’ ’ Here follows the fee bill prescribed, and upon it the claim of the plaintiff is base'd. It is clear from the foregoing provisions of the statutes and city ordinances that the city justice of the peace is vested with exclusive jurisdiction “in cases arising under or by virtue of the violation of any city ordinance, and in all other actions has the same power and jurisdiction as other justices of the peace,” and that in cases arising under or by virtue of the violation of any city ordinance his compensation is covered by his salary ($1,000’), and in all other cases his compensation is such only as section 978, Rev. St. 1898, prescribes.

It is contended on behalf of the appellant that “a suit by a city to collect poll tax is an action arising under or by virtue of a city ordinance, ’ ’ and that, therefore, the compensation of the said John B. Timmony was covered by his salary. On behalf of the respondent it is claimed that the right to collect a poll tax is created by section 1743, Rev. St. 1898, that a suit for'its recovery is an action in debt over which the justices of the peace have jurisdiction, but not within the exclusive jurisdiction of the city; justices of the peace. The latter contention is, in onr opinion, correct. It follows that the incumbent was entitled to the fees prescribed by section 978, Rev. St. 1898.

The judgment is affirmed, with costs.

BARTCH and McCARTY, JJ., concur.