Opinion
Page __
__ Cal.App.2d __ 291 P.2d 57 COUNTY OF SAN DIEGO, Plaintiff and Respondent, v. W. F. MILOTZ, Jr., et al., Defendants and Appellants. Civ. 5144. California Court of Appeals, Fourth District Nov. 30, 1955Rehearing Denied Dec. 20, 1955.
Hearing Granted Jan. 25, 1956.
[291 P.2d 61] Parker, Stanbury, Rees McGee; Raymond G. Stanbury, Los Angeles, for appellant W. F. Milotz, Jr.
James S. Lowrie and James B. Abbey, San Diego, for appellants J. C. Perrigo, American Bonding Company of Baltimore and St. Paul Mercury Indemnity Company.
James Don Keller, Dist. Atty., and County Counsel of San Diego County, San Diego, Duane J. Carnes and Bertram McLees, Jr., Deputies, San Diego for respondent.
MUSSELL, Justice.
This action was filed in the Municipal Court of San Diego county on November 19, 1952. Plaintiff therein sought to recover from defendant Milotz and from J. C. Perrigo, county auditor, and his bondsmen, reporter's fees alleged to have been illegally allowed and paid to Milotz by said county auditor contrary to the provisions of section 869 of the Penal Code. The Municipal Court entered a judgment of dismissal in said action, after sustaining demurrers to the second amended complaint without leave to amend. The order dismissing the action was reversed on appeal. County of San Diego v. Milotz, 119 Cal.App.2d Supp. 871, 260 P.2d 282, and the cause was remanded for trial by the Appellate Department of the Superior Court of San Diego. A second amended complaint was filed in the Municipal Court. Defendant Milotz filed an answer to this complaint and on April 14, 1954, filed a counterclaim and cross-complaint therein. The amount demanded in the cross-complaint being for the sum of $7,700, and therefore in excess of the jurisdiction of the Municipal Court, the action was transferred to the Superior Court in San Diego. Trial therein resulted in a judgment in favor of the plaintiff county for the sum of $1,319.55. Milotz, Perrigo, American Bonding Company of Baltimore and St. Paul Mercury Indemnity Company, defendants, appeal from the judgment.
Defendant Milotz was at all times involved herein 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, which were deleted from that section in 1953, but are contained, in substance, in section 72194 of the Government Code. On July 6, 1949, he entered into a contract with the County of San Diego wherein it was agreed that he act as phonographic reporter in any of the Municipal Courts of the city of San Diego and perform such duties as directed and authorized by the presiding judge of said court, for the fiscal year 1949-1950, for the sum of $400 per month, plus the fees provided in section 274 of the Code of Civil Procedure [now Government Code, § 69952] for the transcription of the testimony and proceedings in felony cases. Similar contracts were entered into by Milotz and the county for the fiscal years 1950-1951, 1951-1952, and for the fiscal year commencing July 1, 1952. On August 15, 1949, and at various times thereafter to and including September 18, 1951, preliminary hearings in nonhomicide felony cases were conducted in the Municipal Court and were reported by defendant Milotz upon order of the presiding magistrate. The transcripts in each [291 P.2d 62] case were filed with the county clerk. However, none of these transcripts were so filed within ten days after the close of the preliminary examination where the defendant was held to answer to the charge. Claims for his services at these preliminary hearings were presented to the county auditor by Milotz. They were signed by him and certified as correct by the presiding judge of the Municipal Court, who, in each instance, directed that the claim be paid. On December 5, 1949, and at various times thereafter to and including August 29, 1951, preliminary hearings in homicide cases were conducted in said Municipal Court and on orders of the presiding magistrate, were reported by Milotz. He also filed his transcripts in these cases with the county clerk at a date more than ten days after the close of the examinations in each case. Milotz presented authenticated claims to the auditor in these cases, as in the nonhomicide cases, and warrants were issued by the county auditor in both nonhomicide and homicide cases. Milotz was paid at the rates which would have been applicable had the transcripts been filed within ten days after the close of such preliminary examinations. No deductions were made by the auditor for delays in the filing of these transcripts. In addition to these fees, Milotz received during his employment the $400 per month as stipulated in his contracts with the county.
The county seeks to recover one-half of the several sums paid Milotz for the said transcripts, claiming that the payments made to him were unauthorized and illegally paid. Defendants dispute the right on the part of the county to any recovery and Milotz further asserts that as a matter of law he is entitled to $600 per month salary instead of the $400 specified in his contracts with the county. He seeks recovery of the difference in his counterclaim and cross-complaint.
Appellant Milotz first argues that the present action is upon a penalty and is barred by the provisions of section 340, subdivision 1, of the Code of Civil Procedure, which provides concerning the time within which an action may be commenced, as follows:
'[Within one year.] Within one year:
'1. An action upon a statute for a penalty or forfeiture, when the action is given to an individual, or to an individual and the State, except when the statute imposing it prescribes a different limitation.'
This action was commenced on November 19, 1952, and the date of the last act complained of in the complaint is October 16, 1951. It appears, therefore, that if the instant action is to recover a penalty, as is contended by appellants, the cited statute operates as a bar thereto. However, we cannot agree with this contention.
Section 869 of the Penal Code, as far as is applicable here, provides as follows:
'* * * The testimony of each witness in cases of homicide must be reduced to writing, as a deposition, by the magistrate, or under his direction, and in other cases upon the demand of the prosecuting attorney, or the defendant, or his counsel. The magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in shorthand in all examinations herein mentioned, and for that purpose he may appoint a shorthand reporter. * * *
'* * * Fifth--The reporter shall, within ten days after the close of such examination * * * 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 [291 P.2d 63] have not been complied with by him.
'* * * Seventh--If said transcript is filed within the time hereinbefore provided for, the reporter shall be entitled to receive the compensation fixed and allowed by law to reporters in the superior courts of this State.'
The court held in County of San Diego v. Milotz, 119 Cal.App.2d Supp. 871, 886, 260 P.2d 282, 292, supra, that this statute does not provide for penalty but for reduction of compensation for work not performed within the time provided by law. The court there quoted from United States v. Shields, 153 U.S. 88, 91, 14 S.Ct. 735, 38 L.Ed. 645: "'Fees allowed to public officers are matters of strict law, depending upon the very provisions of the statute. They are not open to equitable construction by the courts, nor to any discretionary action on the part of the officials."' The court further said: 'Numerous California decisions follow the same rule of strict construction in construing statutes authorizing payment of public funds for services rendered. See City of Corona v. Merriam, 20 Cal.App. 231, 128 P. 769; Woods v. Potter, 8 Cal.App. 41, 95 P. 1125; Sarter v. Siskiyou County, 42 Cal.App. 530, 183 P. 852; Greene v. Town of Lakeport, 74 Cal.App. 1, 239 P. 702.'
In Agudo v. County of Monterey, 13 Cal.2d 285, 289, 89 P.2d 400, 402, the court said:
'In this state a statutory penalty has been frequently defined as 'one which an individual is allowed to recover against a wrongdoer, as a satisfaction for the wrong or injury suffered, and without reference to the actual damage sustained'. Los Angeles County v. Ballerino, 99 Cal. 593, 32 P. 581, 582, 34 P. 329.'
In 20 Cal.Jur. 977-978 it is stated:
'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.'
In 31 Words and Phrases, Penalty, page 596:
'A penalty or penal sum is a sum of money payable as an equivalent for an injury. Eason v. Witcofskey, 29 S.C. 239, 246, 7 S.E. 291. A punishment imposed by statute as the consequence of the commission of a certain specified offense; a pecuniary punishment; a sum of money imposed by statute, to be paid as a punishment for the commission of a certain act. State of Iowa v. Chicago B. & Q. R. Co., CC., 37 F. 497, 498, 3 L.R.A. 554, citing Burrill, Law Dict. 286.'
In the instant case is may reasonably be assumed that the legislature intended to provide for the prompt delivery of preliminary transcripts in felony cases in which a defendant is held to answer by providing for additional compensation to the reporter if such transcripts are filed with the county clerk within the ten days specified in section 869 of the Penal Code. We conclude that this statute does not provide for a penalty but provides extra compensation for prompt service. It follows that plaintiff's action is not barred by the provisions of section 340, subdivision 1, of the Code of Civil Procedure.
Appellant argues in this connection that the failure of the trial court to find on this issue requires a reversal of the judgment. However, it was stipulated by the parties 'That the issues before the court, both as to the complaint and the cross-complaint of J. E. Perrigo and the cross-complaint and counterclaim of cross-complainant W. F. Milotz, Jr., are questions of law, unless evidence is offered by one of the parties to controvert any of the allegations in the pleading.' Under such circumstances the finding was unnecessary. Taylor v. George, 34 Cal.2d 552, 556, 212 P.2d 505. Where error is claimed because of a lack of finding on a material issue the burden of proof is on the appellant and error [291 P.2d 64] cannot be presumed from the mere statement of it in the absence of a record showing that some evidence was offered. Mortgage Guarantee Co. v. Smith, 9 Cal.App.2d 618, 621, 50 P.2d 835.
It is next argued that Penal Code section 869 cannot legally be applied to the first 126 causes of action (nonhomicide cases) because its title does not include such cases, but if it does apply thereto, there is no proof of the condition precedent prescribed therein as to such cases. We cannot agree with these contentions. The heading as found in the published code is not a part of the statute and the statute itself refers both to 'homicide' cases and 'other cases'. The official title of the act as shown by Statutes of 1933, page 2020, the most recent amendment to section 869 of the Penal Code, is 'An act to amend sections 869, 925, and 1017 of the Penal Code, relating to the duties of official reporters.' And as is said in In re Halcomb, 21 Cal.2d 126, 130, 130 P.2d 384, 386;
'While not relying solely upon the 'heading' preceding section 4532 of the Penal Code as a ground for its decision, the District Court of Appeal refers to said 'heading' to reinforce its construction of said section. The headings to this section are indicated as enclosed in brackets, and are not to be regarded as official. Deering Pen.Code, 1941, p. xxii. Evidently they are inserted in the code by the publisher and as such they are not binding upon the courts. Even if the heading of this section were contained in its official enactment, it would not govern, limit or modify nor in any manner affect the scope, meaning or intent of said section. Pen.Code, sec. 10004. This last mentioned section of the Penal Code was a part of the same statute enacted in 1941, which amended section 107 of the Penal Code, by dividing the then existing section into two parts, one of which is the present section 4532 of the Penal Code.'
Except in homicide cases wherein the defendant is held to answer, the statute does not require the testimony taken at a preliminary hearing be reduced to writing and filed except upon the demand of the prosecuting attorney, or the defendant, or his counsel. People v. Brooks, 72 Cal.App.2d 657, 660, 165 P.2d 51; People v. Smith, 59 Cal. 365, 366; County of San Diego v. Milotz, 119 Cal.App.2d Supp. 871, 876, 260 P.2d 382. However, as is said in People v. Williams, 129 Cal.App. 504, 508, 19 P.2d 37, 39: "the magistrate before whom the examination is had may, in his discretion, order the testimony and proceedings to be taken down in shorthand in all examinations herein mentioned, and for that purpose he may appoint a shorthand reporter.' This language indicates that it is discretionary with the magistrate whether or not he shall appoint a reporter for the purpose of having the proceedings at such examination taken down in shorthand.' In the instant case the record shows that the proceedings in the nonhomicide cases were ordered prepared by the court in each instance. It is evident from the provisions of the fifth subdivision of section 869 that unless the reporter files his transcripts (in both homicide and nonhomicide cases) with the county clerk within the time specified, he is not entitled to charge the fees allowed by statute therefore as the section provides that if the defendant is held to answer at the close of such examination the reporter shall, before receiving any compensation for his services, file his affidavit with the auditor setting forth that the transcripts had been filed with the clerk within the time provided.
The next argument presented by appellant is that since in each instance the fees of the reporter were paid upon an order of the municipal court, such orders, never having been reversed, modified or appealed from, are res judicata and not subject to collateral attack. The contracts which Milotz had with the county all provide, among other matters, that the county 'Pay to the reporter the statutory fees as provided in section 274 of the California Code of Civil Procedure for the transcription of testimony and proceedings in felony cases, which fees shall be paid from the county's general fund by the county's treasurer [291 P.2d 65] upon the presentation to the county's auditor and controller of a proper claim signed by the reporter and approved by the presiding judge of said municipal court.' Ordinarily, all claims against the county are required to be presented to and passed upon by the board of supervisors. Gov.Code § 25251, under the procedure prescribed by sections 29700 et seq. of said code, except that 'salaries of officers and such demands as are authorized by law to be allowed by some other person or tribunal.' The allowance and settlement of claims by the board of supervisors is an adjudication, by a tribunal having jurisdiction of the matter, that the services have been rendered, and of the correctness of their value, and is conclusive. Lamberson v. Jefferds, 118 Cal. 363, 365, 50 P. 403; Riverside County v. Yawman & Erbe Mfg. Co., 3 Cal.App. 691, 695, 86 P. 900. Section 69952 of the Government Code, which is applicable to municipal courts by the provisions of section 274c of the Code of Civil Procedure, authorizes the court to order both the per diem and transcription fees in criminal cases to be paid out of the county treasury. This provision does not apply to criminal proceedings not authorized to be reported under the provisions of section 269 of the Code of Civil Procedure.
In the instant case, in connection with the claims for transcription fees, the judge of the municipal court in conducting the preliminary examinations was not acting as a judge but as a magistrate. People v. Williams, 129 Cal.App. 504, 508, 19 P.2d 37, supra; People v. Crespi, 115 Cal. 50, 54, 46 P. 863. In People v. Cohen, 118 Cal. 74, 50 P. 20, it is said that the office of a magistrate is purely statutory and the powers and duties of this functionary are solely those given by statute, and he is not accompanied in the discharge of those functions by any of the general or implied powers, nor by those presumptions of regularity of the proceedings, which surround him when sitting as a judge of said court. As such magistrate he is purely a creature of the statute. See also People v. Brite, 9 Cal.2d 666, 684, 685, 72 P.2d 122. Since the orders herein for the payment of transcription fees were made by a judge of the municipal court, acting as a magistrate, and there is no statute empowering a magistrate to order warrants drawn on the county treasury, it follows that such orders are not res judicata as contended by appellant.
The next contention to be considered is appellant's claims that the respondent county is barred by laches, waiver and estoppel. The question as to whether an estoppel exists is a question which should be left to the trier of fact to be determined as a question of fact, and not as a question of law. Cruise v. City & County of San Francisco, 101 Cal.App.2d 558, 562, 225 P.2d 988. In Lorenson v. City of Los Angeles, 41 Cal.2d 334, 340, 260 P.2d 49, 53, the court points out that "there are many instances in which an equitable estoppel in fact will run against the government where justice and right require it." In Wheeler v. Gregg, 90 Cal.App.2d 348, 367, 203 P.2d 37, 50, it is held that "There is no doubt that the general rule is that estoppel will not be invoked against the government or its agencies except in rare and unusual circumstances." In County of Marin v. Messner, 44 Cal.App.2d 577, 112 P.2d 731, it is held that the doctrine of equitable estoppel does not apply to a statutory action under section 4005b of the Political Code (now section 26525 of the Government Code) to recover money unlawfully paid out, even though the countty and the defendant may have acted innocently. In People v. Oyama, 29 Cal.2d 164, 180, 173 P.2d 794, 804 (Reversed on other grounds by the United States Supreme Court in Oyama v. State of California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249, the court said:
'In regard to the special defense of laches, the court found that the action was not barred upon that ground. The record shows that no evidence was presented tending to prove that any injury resulted to the defendants by reason of the lapse of time which occurred before the commencement of the proceeding and the finding is amply justified. Alexander v. State Capital Co., 9 Cal.2d [291 P.2d 66] 304, 313, 70 P.2d 619; Ballagh v. Williams, 50 Cal.App.2d 10, 13, 122 P.2d 343.'
And in Alexander v. State Capital Co., 9 Cal.2d 304, 313, 70 P.2d 619, it is held that the element of time is but one of the factors in determining whether laches is to bar the action. Another element is that of injury occurring to the wrongdoer by reason of the delay. In the case at bar the court found that plaintiff was not estopped to maintain the action and this finding is supported by the record. There is no evidence that by the lapse of time it would be inequitable to enforce the demands of the county of that 'justice and right require the application of the doctrine of estoppel', where, as here, no injury to appellant was shown.
Appellant Milotz contends that the judgment on the cross-complaint is erroneous and should be reversed. He argues in this connection that by the provisions of section 261a.8 of the Code of Civil Procedure [Now Government Code, § 70048] (since the effective date of said section on the 91st day after June 22, 1951) he has been entitled by general law to a salary of $600 per month; that from July 1, 1949, to and including September 30, 1951, he was entitled to a salary of $500 per month under the provisions of section 261b of the Code of Civil Procedure [now Government Code, § 70049]; that section 274c of the same code, from its original enactment in 1927 until it was amended in 1953, provided that sections 270 to 274, inclusive, of that code should be applicable to the qualifications, duties, official oath, certificate of transcription and fees of official reporters in municipal courts; that section 274 of the Code of Civil Procedure continuously from 1903 and during the time here involved provided for reporters' per diem fees for taking down testimony and other court proceedings and a scale of fees for transcribing the same; that by section 261a.8 of the Code of Civil Procedure by which section 274 was in part superseded, a change was made in the method of compensating the official reporters of the superior courts, in that they were allowed, in lieu of compensation, a salary of $7,200 per year, each, plus fees for transcribing the testimony and other court proceedings taken down by them 'as provided by section 274 of the Code of Civil Procedure and by any other law of this State pertinent to the case'; that in 1953 section 274 of the Code of Civil Procedure was finally repealed and section 274c thereof was so amended that for the original reference therein to sections 270 to 274, inclusive, of that code there was substituted a reference to sections 69942 to 69953, inclusive, of the Government Code covering the same ground. Section 274c of the Code of Civil Procedure, by which the provisions of sections 270 to 274, inclusive, of said code were made applicable to reporters in municipal courts, was not enacted until 1951, and the compensation of such reporters is therein described as 'fees', not salary. The salaries of superior court reporters are provided for in sections 261a.8 and 261b of said code. While 'fees' in some cases have been held to include salaries, State ex rel. O'Connor v. Riedel, 329 Mo. 616, 46 S.W.2d 313, 133, there is a distinction in that 'fees' ordinarily constitute payment for particular services performed, while 'salaries' constitute fixed compensation for continuous services over a period of time. McNair v. Allegheny County, 328 Pa. 3, 195 A. 118, 121.
By section 274c of the Code of Civil Procedure sections 270 to 274, inclusive, were made applicable to reporters of municipal courts and when one statute incorporates the provisions of another by specific reference to the title, the latter is incorporated as it then exists and not as it is subsequently modified. Rancho Santa Anita v. City of Arcadia, 20 Cal.2d 319, 322, 125 P.2d 475. Neither in its original form nor in any reenactment of it, does section 274c of the Code of Civil Procedure make any reference, or otherwise, to the new section 261a.8 of the Code of Civil Procedure or to section 70048 of the Government Code by which that section was as to the salaries of superior court reporters in San Diego county superseded or purport in any express way to incorporate therein any of the [291 P.2d 67] the provisions thereof. It follows that section 274c of the Code of Civil Procedure does not incorporate within itself any provisions relative to the salary of municipal court reporters, nor make any provision for salaries of attaches of municipal courts. During the time herein involved sections 270 to 274, inclusive, provided a per diem fee for taking down testimony and other court proceedings in both civil and criminal cases, and also a scale of fees for transcriptions. These incorporated provisions are to be read and construed with the provisions of section 869 of the Penal Code which deal with the reporting of testimony taken in preliminary examinations before magistrates, in cases the trial of which is within the jurisdiction of the superior court.
Municipal courts have jurisdiction in certain criminal cases amounting to misdemeanor, Pen.Code, § 1462, and in the civil cases enumerated in section 89 of the Code of Civil Procedure. The municipal court reporters report and transcribe these proceedings. The provisions of section 274 of the Code of Civil Procedure, formerly incorporated by reference in section 274c of that code, and the provisions of section 69950 of the Government Code, since the amendment of 1951 incorporated in said section 274c, fix the fee for taking down such testimony and proceedings and are applicable both in misdemeanor cases and civil cases generally. The transcription fees are now fixed by section 69950 of the Government Code. It is apparent that in misdemeanor cases the taking down and transcription of testimony and other proceedings is a public charge only when the court so specifically directs and this direction can only be made at the demand of either the district attorney or the defendant or his attorney, Code Civ.Proce. § 274c, incorporating Government Code, § 69952, in which event they are payable on the court's order from the county treasury. In civil cases in municipal courts both the per diem fees for taking down the proceedings and also the fees for transcription are expressly made payable by the parties, Code Civ.Proc. § 274c, incorporating Gov.Code, § 69953. As stated in the comprehensive and well considered opinion of the trial court, filed herein, 'when, therefore, the several enactments now and heretofore in fact incorporated by reference in section 274c of the Code of Civil Procedure, are read in connection with section 869 of the Penal Code, it appears that the compensation of official reporters of municipal courts, in all classes of criminal cases there cognizable and in all cases in which such reporters are under obligation to perform services, has been provided for by specific action of the legislature itself and that the scheme adopted has from the outset contemplated their compensation entirely by fees and in no part by salaries.'
We conclude, therefore, that the provisions for salaries made in the case of superior court reporters in San Diego county are not made applicable to municipal court reporters in that county.
In view of what we have here said, it is unnecessary for us to pass upon other points raised on appeal.
The judgment is affirmed.
BARNARD, P. J., and GRIFFIN, J., concur.
Rehearing denied: GRIFFIN, J., dissenting.