Webster v. Hanna

Garoutte, J. This is an original application for a writ of mandate to compel a justice of the peace to send to the superior court the papers on appeal in a civil action which had theretofore been tried before said justice and judgment rendered. The appellant paid the fees of the justice upon the appeal, and also his own costs incurred at the trial of the action, but refused to pay to the justice the costs of the respondent incurred at the trial, and for that reason the justice declined to forward the papers to the clerk of the superior court. If the justice is entitled to receive from the appellant the costs incurred by the respondent at the trial before it becomes his duty to forward the papers to the appellate court, then this application must be denied. An act of the legislature (Stats. 1877-78, p. 134) declares what fees justices of the peace are entitled to charge, and following such declaration in the same act this language occurs: “All fees of justices of the peace, including those on trial and those on appeal, must be paid before the justice shall be compelled to forward any papers on appeal.” This language is very broad, and [178] covers the entire subject. It certainly refers to all fees to which the justice is entitled under the law, whether those fees be incurred by appellant or respondent. (See Bray v. Redman, 6 Cal. 287.) As to the policy of a law requiring the appellant to pay to the justice all fees incurred by respondent before he is entitled to have the papers transferred to the superior court, we are not called upon to discuss it. This provision of the statute is not in conflict with any section of the Code of Civil Procedure, and is entirely in line with that portion of section 977 bearing upon the fees of justices of the peace. It not being in conflict with any subsequent provision of the code or statutes, there can be no repeal by implication. While to some extent it may be inconsistent with other provisions of the code, yet inconsistency in statutes does not make this court a forum for the exercise of legislative functions, in amending or repealing plain provisions of the law. The application is denied, and the proceedings dismissed. Paterson, J., McFarland, J., and Fitzgerald, J., concurred.