99 Cal. 412 | Cal. | 1893
TO SALARY OF PUBLIC OFFICER — CONSTITUTIONAL LAW — LIMIT OF INDEBTEDNESS OF MUNICIPAL BODY. — The payment of the salary of a public officer, whose office has been created and salary fixed by law, is not within the prohibition of section 8 of article XI. of the constitution prohibiting any county, city, township, etc., from incurring "any indebtedness or liability in any manner, or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent of two thirds of the qualified voters," which refers only to indebtedness or liability incurred by the act or conduct of the municipal body.
— SALARY OF CLERK OF REGISTRAR OF VOTERS — PAYMENT FROM GENERAL FUND — DUTY OF TREASURER — MANDAMUS. — The salary of the chief clerk of the registrar of voters for the city and county of San Francisco is payable out of the general fund when there is sufficient money therein, without regard to revenues of previous years, and it is the duty of the treasurer specially enjoined by law to pay the audited demand of such clerk for his salary, which will be enforced by writ of mandate. This is an original application here for a writ of mandate requiring the respondent, who is treasurer of the city and county of San Francisco, to pay an audited claim of petitioner for his salary as chief clerk in the office of registrar of voters, for the month of June, 1893.
The facts are that the office of petitioner was established, and his salary fixed at one hundred and fifty dollars per month, by a statute of the state legislature; that when, on August 3, 1893, he made demand on the respondent for the payment of his claim for salary for the month of June preceding, there was plenty of money in the general fund of said city and county to pay the same; but that there was no money in said fund which had been derived from the revenues of the city for the fiscal year ending June 30, 1893. The charter of said city and county — commonly called "the Consolidation Act" — provides that the fixed salaries of officers shall be paid out of the general fund; *413 and that in case of a deficiency in the fund, demands for salaries shall be registered and paid out of any moneys afterwards coming into the fund. (Secs. 95, 96.) It nowhere limits the payment of such salaries to the revenue of any particular year.
The respondent contends — or, rather, he suggests that somebody else might give him trouble by contending — that he should not pay petitioner's salary on account of section 18 of article XI. of the state constitution, which reads as follows: "No county, city, town, township, board of education, or school district, shall incur any indebtedness or liability in any manner, or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent of two thirds of the qualified voters," etc. It is quite apparent, however, that this clause of the constitution refers only to an indebtedness or liability which one of the municipal bodies mentioned has itself incurred — that is, an indebtedness which the municipality has contracted, or a liability resulting, in whole or in part, from some act or conduct of such municipality. Such is the plain meaning of the language used. The clear intent expressed in the said clause was to limit and restrict the power of the municipality as to any indebtedness or liability which it has discretion to incur or not to incur. But the stated salary of a public officer fixed by statute is a matter over which the municipality has no control, and with respect to which it has no discretion; and the payment of his salary is a liability established by the legislature at the date of the creation of the office. It, therefore, is not an indebtedness or liability incurred by the municipality within the meaning of said clause of the constitution.
Counsel for respondent does not very strenuously contend that the foregoing construction would not be the correct one if the question were res integra; but he contends that this court has decided otherwise in the cases of San Francisco Gas Co. v.Brickwedel,
On the other hand, the cases of Cashin v. Dunn,
Our conclusion is that the payment of the salary of a public officer whose office has been created and salary fixed by law. either statutory or constitutional, is not within the provision of said section 18 of article XI. of the constitution; that his salary is to be paid out of said general fund when there is sufficient money therein without regard to revenues of separate years; and that it was a duty specially enjoined by law upon respondent to pay the said audited demand of petitioner when it was presented on said third day of July.
Let a peremptory writ of mandate issue as prayed for in the petition.
FITZGERALD, J., GAROUTTE, J., DE HAVEN, J., and HARRISON, J., concurred.
BEATTY, C. J., did not participate in the decision of the above cause. *655