90 P. 716 | Cal. Ct. App. | 1907
This appeal is from a judgment denying appellant's application for a writ of mandamus, to compel the respondent to audit a demand upon the treasury of the city and county of San Francisco for the salary of appellant, as assistant district attorney, for the month of July, 1906. It is conceded that there is money in the general fund in the treasury of the city and county of San Francisco sufficient to pay the claim; that such money has not been appropriated to the payment of any claim or demand upon the said treasury, and that proper demand has been made upon the respondent. *416
The respondent contends that the board of supervisors had made no specific appropriation of money for the payment of appellant's salary for the fiscal year beginning July 1, 1906, and upon this ground claims that his refusal was justified, and this was the view taken by the judge of the superior court. It will, therefore, be necessary to consider the nature of the demand, and the law relative thereto.
Under the charter of the city and county of San Francisco (art. V., sec. 3), the district attorney is authorized to appoint seven assistant district attorneys, who shall each receive an annual salary of $3,600. The district attorney appointed seven assistant district attorneys under the authority above cited, and appellant was not one of the seven so appointed.
The charter further provides (art. XVI, sec. 35) that when any officer shall require additional deputies, application shall be made to the mayor, who shall make investigation as to the necessity for such additional deputies, and if he find the same necessary he may recommend to the supervisors to authorize the appointment of such additional deputy, and thereupon the supervisors, by an affirmative vote of not less than fourteen members, may authorize such appointment and provide for the compensation of such deputy.
It will thus be seen that it was the intention of the framers of the charter to prevent the appointment of deputies unless deemed necessary by the principal officer, the mayor and fourteen of the supervisors.
Application having been made by the district attorney to the mayor, and the mayor finding it to be necessary, recommended to the supervisors the appointment of an additional assistant district attorney. Upon such recommendation the board of supervisors, on the twenty-ninth day of May, 1905, duly adopted an ordinance, authorizing the district attorney to appoint an additional assistant district attorney at a salary of $250 per month, which ordinance was duly approved by the mayor. On January 8, 1906, the district attorney, in pursuance of the charter, and the ordinance so adopted by the board of supervisors, duly appointed the appellant such additional assistant district attorney. Appellant duly qualified, took the oath of office, and entered upon the discharge of his duties, and his appointment has not been revoked or annulled. He performed the duties required of him as such assistant district attorney for the month of July, 1906, and has *417 never been paid therefor. Having performed the services for the city, by the express appointment of the district attorney under the authority of the charter, he should be paid, unless the charter plainly prohibits such payment. The contention is that the payment is prohibited by reason of the charter (art. III, chap. 1, secs. 6, 7), which provides: "Except as otherwise provided in this charter, no money shall be drawn from the treasury unless in consequence of appropriations made by the supervisors, and on warrants duly drawn thereon by the auditor. No warrant shall be drawn except upon an unexhausted specific appropriation."
Does this provision apply to the salary of an assistant district attorney?
The appellant, after his appointment and qualification, held the office by the same title and from the same source as the seven other assistant district attorneys. His compensation was different, and perhaps the duration of his term less certain; but he was one of the assistant district attorneys, and may be said to be the eighth one. Seven were appointed under the direct authority of the charter. Appellant was appointed under the authority of the ordinance, which in turn was authorized by the charter. After the ordinance was passed it must be read into and as a part of the charter for the purposes of this case, and when so read the district attorney had the authority to appoint eight assistant district attorneys. The charter is itself a law of the state. (People v. Williamson,
The charter contains the provision (art. III, chap. 1, sec. 15) that "the board of supervisors shall authorize the disbursement of all public moneys except as otherwise specifically provided *418 in this charter." The charter specifically provides for the salary of the district attorney and his seven assistants. When the ordinance was passed it specifically provided for the salary of the eighth assistant, and this with the direct authorization of the supervisors. We cannot persuade ourselves that the salaries of the district attorney and of his assistants shall go unpaid because the board of supervisors did not specifically set apart a fund sufficient for their payment in full. The charter does not contemplate that the machinery of the district attorney's office shall be stopped by reason of the errors or willful neglect of the board of supervisors — an independent branch of the city government. The object of the charter is to provide safeguards against the willful and careless expenditure of the public moneys by the board of supervisors, but the board of supervisors has nothing to do with the payment of the salaries of the officers of the city. Such salaries are fixed by law and must be paid.
In Cashin v. Dunn,
In Welch v. Strother,
In Lewis v. Widber,
To the same effect see City and County of San Francisco v.Broderick,
The principle upon which all the above cases were decided is that the restrictions which the organic act imposes upon the setting aside of funds and payment of money out of the treasury do not apply to the payment of demands arising out of liabilities which are placed by law beyond the control of the board of supervisors. The board of supervisors had control in the first place of the question as to whether or not they would authorize the appointment of appellant as assistant district attorney. After having authorized his appointment and after his receiving the appointment and performing the services, the demand for the salary in payment of such services is beyond the control of the supervisors. The cases cited were all relative to the restrictions of the constitution or the one-twelfth act, but they apply in their reasoning with equal force to the charter of the city and county of San Francisco.
The provisions discussed in the cases cited were as stringent as the provisions of the charter.
The late case of Jackson v. Baehr,
It has been held that the controller cannot refuse to draw a warrant for a salary fixed by law merely because the legislature had failed to make a specific appropriation. That the fixing of the salary payable monthly out of any money not otherwise appropriated was sufficient. (Humbert v. Dunn,
We have discussed the case thus far without reference to the question that an appropriation was in fact made. The bill of exceptions shows that prior to July 1, 1906, the board of supervisors made a budget, and appropriated for the fiscal year commencing July 1, 1906, "$36,200 for the salaries of district attorney, his assistants, clerks, stenographer and bond and warrant clerks." Appellant was one of the assistant district attorneys, and included in the appropriation. It cannot be said that, because the appropriation was enough for the officers named with the exception of one assistant district attorney, the intention was to exclude this appellant. He was as much an assistant as either of the seven first appointed. The appropriation may become exhausted before the end of the fiscal year, but it certainly was not short for the very first month of the year. *421
Respondent claims that the appellant was not an officer, that his employment was only temporary, and that no annual salary was fixed. There is no merit in such contention. The charter (art. V, chap. 3, sec. 3) provides that the assistant district attorneys shall each, at the time of his appointment, be qualified to practice law, and to practice in all the courts of the state, and must have been so qualified for at least two years next preceding his appointment. Under the Political Code (sec. 865) the assistant or deputy possesses the powers and may perform the duties of his principal. The position was created under the charter, and by its express authority. The compensation was fixed by the body authorized in the charter to fix it. The duties are fixed by the charter and by statute, and are continuing duties. Such duties will continue while the place continues, although the person might be changed. This in our opinion made the appellant an officer within the rule prescribed by the authorities. (Mechem on Public Officers, sec. 38; United States v. Maurice, 2 Brock. 96, [Fed. Cas. No. 15,747]; Patton v. Board of Public Health,
The judgment is reversed.
Kerrigan, J., and Hall, J., concurred.