Civ. No. 468. | Cal. Ct. App. | Mar 31, 1908
January 7, 1907, one Scott McKay, having been theretofore elected county surveyor of Fresno county for a term of four years, qualified and assumed the duties *22 of that office. He thereupon appointed the plaintiff deputy county surveyor, which appointment continued in force until June 1, 1907, when it was revoked. Thereafter, however, he was reappointed to the same position, qualified under the second appointment, and served for one month, whereupon he demanded of the county auditor (defendant) a warrant upon the treasury of said county for the sum of $100 as his salary for said month, being the month of June. Compliance with this demand was refused, and plaintiff in his complaint prays for an alternative writ of mandate, directing said auditor to issue and deliver said warrant to him. Judgment went for defendant, from which judgment plaintiff prosecutes this appeal.
When Scott McKay was elected to the office of county surveyor in January, 1907, his salary and that of his deputy was fixed by the county government act (Stats. 1905, p. 435 et seq.), as follows: "In counties of the seventh class (Fresno) the county officers shall receive as compensation for the services required of them by law or by virtue of their offices, the following salaries, to wit:
"Paragraph 12. The surveyor, two thousand dollars ($2,000.00) per annum in full compensation for all services as county surveyor, as road viewer and road inspector, and his actual expenses when at work in the field. He shall have one deputy at an annual salary of nine hundred and sixty dollars ($960.00)."
The legislature of 1907 (Stats. 1907, p. 447), modified the foregoing paragraph 12, by amending section 4236 of the Political Code, so as to fix the salary of deputy surveyor at $1,200 per annum. In all other respects the paragraph remains unchanged.
The question for determination is whether the act increasing the salary of the office held by appellant, viz., that of deputy county surveyor, is within the prohibition of article XI, section 9, of the constitution of this state, which reads: "Compensation of any county, city, town or municipal officer shall not be increased after his election or during his term of office, nor shall the term of any officer be extended beyond the period for which he is elected or appointed."
After a careful examination of the authorities we are convinced that the expression "term of office," as used in the *23 constitutional provision just quoted, applies only to officers who have a fixed and definite term, and that it does not apply to appointive officers who hold at the pleasure of the appointing power.
In the case of Gibbs v. Morgan,
In Speed v. Crawford, 3 Met. (Ky.) 207, the word "term" is expressly held to designate "a fixed and definite period of time," and the court states that officers removable at the pleasure of another officer, or where they may be removed on the occurrence of an uncertain event, do not hold office for a term. This case was decided on a constitutional provision similar to the one found in this state.
In State v. Johnson, 123 Mo. 43" court="Mo." date_filed="1894-06-12" href="https://app.midpage.ai/document/state-ex-rel-kane-v-johnson-8011386?utm_source=webapp" opinion_id="8011386">123 Mo. 43, [27 S.W. 399], a chief engineer of a city fire department was appointed by the council, and was subject to be removed by it. During his incumbency of the office his salary was increased. There, in construing the following constitutional provision: "The compensation or fees of no state, county or municipal officer shall be increased during his term of office," the court said: "It will be observed that this section of the constitution only embraces within its provisions officers who are elected or appointed for some specific or definite term, and that it has no application whatever to the case in hand, where the relator's term of office is not fixed by any law or ordinance and when he simply holds at the pleasure of the appointing power. The relator was not elected nor was he appointed for any definite time. There does not seem to be *24 room for argument in regard to the proper meaning of this section, so plain is it in its construction."
State v. Galusha,
Somers v. State is reported in 5 S. Dak. 321, [58 N.W. 804" court="S.D." date_filed="1894-04-26" href="https://app.midpage.ai/document/somers-v-state-6683775?utm_source=webapp" opinion_id="6683775">58 N.W. 804], and again upon rehearing in 5 S. Dak. 584, [59 N.W. 962" court="S.D." date_filed="1894-08-13" href="https://app.midpage.ai/document/somers-v-state-6683869?utm_source=webapp" opinion_id="6683869">59 N.W. 962]. There the salary of a deputy superintendent of public instruction was reduced by an act of the legislature from $1,200 to $900 per annum, and he contended that this act of the legislature was in violation of a section of the constitution, which provided that "the compensation of no public officer shall be increased or diminished during his term." The court reviewed the authorities, and held that this contention was not correct, for the reason that under the law he has no term. The court said: "He had no title or tenure to the office beyond the pleasure of the appointing power. The word 'term' when used in reference to the tenure of office, means, ordinarily, a fixed and definite term, and does not apply to appointive offices held at the pleasure of the appointing power." (See, also, State v.Massillion, 24 Ohio C.C. 249; 19 Am. Eng. Ency. of Law, 1st ed., p. 562; 28 Am. Eng. Ency. of Law, 2d ed., p. 53; Mechem on Public Officers, sec. 385.)
Respondent also cites the case of Larew v. Newman,
Respondent also cites the case of Larew v. Newman,
The judgment is reversed.
Hall, J., and Cooper, P. J., concurred.