The record-union., 1891-03-29

y
plaintiff. We think the ruling errone-
Gus.
The other alleged errors need not be
noticed as they MAJ not be repeated on a
new trial, except the point made that the
evidence does not show on immediate de-
livery. Upon that point we think there
was evidence enough to warrant the court
in submitting the matter to the jury.
We advise that the judgment and order
be reversed and a new trial ordered.
We concur: TEMPLE, C..
VAN CLIEF, c.,
FooTE, G.
THE COURT.
For the reasons given in the foregoing
opinion the Judgment and order are re-
versed and new trial ordered.
Filled at Los Angeles, March 21, 1911
Appeal from the Superior Court of
Fresno County-M. X. Harris, Judge.
For appellant and Intervenor, w. d.
Tupper, District Attorney, and II. Ii.
Welsh
For respondent, Goucher and Jones.
For defendant, c. G. Merriam.
DEPARTMENT TWO.
PRINCE, Respondent,
CITY OF FRESNO, Defendant, No. 1871.
COUNTY oE FRESNO, @
1uteTFeuor, dIiu Appellant.
This action was tried upon an agreed
stateOf facts, under sections lbs ard lao
of the Code of Civil Procedure. The
plaintiff is the duly elected and qualified
Recorder of the City of Fresno, which is
city of the fifth class under the laws of
the State.
During the months of April, May, June,
July, August and September, 1889, he
COLLECTED fines in his court from parties
tod l,fi
provisions of the Penal Code of the State
of California, as distinguished from vio-
lations of the ordinances of the City of
Fresno, to the amount of S646 90" He
presented to the city his bill for fees
claimed to be due him earned during
that time, in substance as follows:
For fees in cases where fines We're col
lected for violations of the Penal Code Of
the State, Sl75 90. For fees in cases where
fines, were not collected for violations of
the Penal Code, $319 Is. Total fees
claimed S494 25. The city refused to al
low the bill in whole or in part.
The county came in as an intervenor,
claiming to be interested in the suit, and
1t is set out in the agreed facts that: "If it
be determined that the city is not liable
to the Recorder for said fees then the
county is liable, it being unquestioned
that either the city or county is so liable.
And if the determination of this suit is
adverse to the Recorder, the plaintiff, then
the fines collected as aforesaid, to wit: the
said sum of S646 80, should be paid in to
the County Treasurer. Wherefore it is
prayed that the questions raised by the
facts above stated be determined by this
court and Judgment entered accordingly"
Judgment was rendered that plaintiff
pay to the County Treasurer of the said
county of Fresno, intervenor herein, all
fines heretofore imposed by him for vio-
latf nf fhn ic,i< -
Code, and paid after commitment, and
the residue of all such fines paid before
commitment, after deducting therefrom
the expenses of the prosecution in cases
in which said fines were imposed, and
that the intervenor, by its proper officers,
agents and representatives audit and pay
to plaintiff for his services, heretofore
rendered in cases of violations of the pro-
visions of the Penal Code, the same fees
and compensation as are allowed by law
to Justices of the Peace in like cases.n
The Recorders Court of the City of
Fresno, its jurisdiction, rules, practice
and procedure are established by Section
SO6 of the Act entitled Municipal Corpor-
alton Bill" page $50, behring's Political
Code.
g Said Recorders
Court shall have jurisdiction, concur
rently with the Justices Courts, of all
actions and proceedings, civil and GRIM
inal, arising within the corporate limits
Of such city, and which might be tried in
such Justices Court; and shall have ex-
elusive jurisdiction of all actions for the
recovery of any fine, penalty or forfeiture
prescribed for the breach of any ordin-
ance OF such city, of all actions founded
upon any obligations or liability created
by any ordinance, and of all prosecutions
for any violation of any ordinance. -
Section 607 (same page reads:
L
Recorders Court, and shall have the
powers and perform the duties of magis-
trate. He may administer and certify
oaths and affirmationS. and take and
certify Acknowledgements. He shall be
entitled to charge and receive for his sery-
ices such fees as are or may be allowed by
law to Justices of the Peace for like serv-
ices, except that, for his services in GRIMM
al prosecutions for violation of ordinances,
he shall be entitled. to receive only such
monthly salary as the Board of Trustees
shall, by ordinance prescribe; which COM
pensation, when once fixed, shall not be
altered within two years.
The jurisdiction conferred by Section
S06, Supra, on the Recorders Court here in
volved is: First-Concurrent with Jus
tees Courts as conferred by general laws
according to Section 4316 of the Political
Code, and Section S32 ct seq. of the Code
of Civil Procedure as to all matters ordi-
narily cegnizable in the Justices Court,
within the corporate limits of the City of
Fresno. Second-Exclusive jurisdiction
within the same territory as to certain
matters growing out Of the ordinances of
that city.
He may in addition to presiding as
Judge of the Recorders Court perform
all the duties and have the powers of an
ordinary magistrate. He may, like a
Justice of the Peace, take acknowledge
ments and affidavits. (Sec. 179, c. c. P.)
He is, for his services when acting in like
manner as Justice Of the Peace, allowed
Ito charge and receive for his services"
the same fees as such Justices ''are or
may be allowed by law for like
services" The only exception to this be-
ing that he is not entitled to receive fees,
in that way, for anything done for his
services in criminal proceedings under
the city ordinances, but is tor those
services given salary by the City Trus-
tees. 1t is not said expressly whom he
shall charge, or from what source he shall
receive the fees for his action when exer-
cising the jurisdiction and performing the
functions of a Justice of the Peace.
The main question for determination is,
we think, whether as to all criminal
matters, under the Penal Code of the
State, the action of the Recorder is that of
Justice of the Peace or not.
The appellant seems to contend that the
Recorder is mere officer of the city of
Fresno, under the law authorizing
charters for cities of the fifth class, and
that under Section 1461 of the Penal Code,
which gives the definition of Police
Judge, that this Recorder is such Judge,
and as such, is not required, under Sec
ton 1870 of that code, to pay over fines to
the County Treasurer, but must, under
Section 1457, pay them to the City Treas
urer, and must get his fees from the CITY.
! But we do not agree to this view of the
matter. As to very similar statute con-