No. 8,318 | Cal. | Jul 28, 1882
Lead Opinion
The statute of April 27, 1878 (Stats. 1877-8, p. 574), was a perfect law when it was approved on the day above named, and went into effect when the other portions of the law did. Because it happened that there was then an incumbent to which the statute did not apply, and whose term did not expire until March, 1880, did not prevent the statute" of 1878 from going into effect, but merely postponed its operation as to the successor (Lamb) of the incumbent until he took office. It did not operate in this case until March, 1880, because the casus statuti did not exist until that date, but it was still a perfect statute, clothed with all the force and strength that the legislative power could invest it with.
The statutes passed on in the cases referred to (Peachy v. Board of Supervisors of Calaveras County, 59 Cal. 548" court="Cal." date_filed="1881-11-15" href="https://app.midpage.ai/document/peachey-v-board-of-supervisors-5440596?utm_source=webapp" opinion_id="5440596">59 Cal. 548, and Speegle v. Joy, 60 id. 278), are entirely different. In those statutes it was specially provided, as far as the matters involved in the cases cited, that the Act should not go into effect until a future day. This is quite a different thing from saying that it shall not apply to an existing state of things, which may be changed any day after the passage of the Act, viz., by the death of the then incumbent, when on his successor taking office a status would occur and exist to which the statute must per force apply. The statute then operated. It went into effect when it was passed, but did not operate then because there was no case for it to operate on. As soon as the case occurred, it found operation. The distinction is between having an operative effect, and going into effect. The statute may go into effect, but can not operate until the casus statuti occurs.
We are of opinion that the judgment of the Court below is correct, and should be affirmed.
Concurrence Opinion
It is admitted that the defendant was elected, at the general election of 1879, Becorder of the County of Los Angeles, qualified as such, and entered upon the discharge of the duties of his office March 1, 1880; and that, during the month of December, 1881, while in office, he collected the fees of office in controversy.
These fees, during his incumbency, were, under the statute of April 24,1878, to be paid into the Treasury of the county; for although the provision of the statute of 1878 upon that subject, was, according to its terms, not to take effect upon the then incumbent, it was to take effect upon his successor; and the defendant, having been elected as the successor in office of the then incumbent, he became subject to the operation of all the provisions of the statute. As to him, the office became, by force of the statute, a salaried one, and the duty was imposed upon him of collecting the fees of the office and paying them into the County Treasury.
The special provision of the statute as to compensation, and collection and disposal of the fees of the office, which do not affect his predecessor in office, was operative upon him; for although it was not to take effect until a time and an event after the adoption of the Constitution, yet, as it was not inconsistent with any constitutional provision, it took effect at the time expressed by the will of the Legislature.
Therefore I concur in the conclusion of Mr. Justice Thornton.