82 P. 329 | Cal. | 1905
Lead Opinion
The action was brought to recover from defendant county four hundred and five dollars alleged to be due plaintiff as justice of the peace on one hundred and thirty-five criminal actions and proceedings heard before him during the month of September, 1903. The plaintiff had judgment for the amount claimed, and the defendant county appeals therefrom.
1. Appellant's first contention is, that the complaint fails to show that the claim was presented twice to the board of supervisors, and is therefore defective.
It appears that the claim was wholly rejected on its first and only presentation to the board. It was, therefore, unnecessary to present it again. (San Diego v. Riverside,
2. The vital question in the case relates to the constitutionality of the County Government Act of 1897 as amended *684
in 1901. In 1897 (Stats. 1897, p. 536) it was provided that justices of the peace in Kern County in townships having a population of four thousand should receive a monthly salary of one hundred and twenty-five dollars in full compensation of all services in both civil and criminal cases. Under the same section justices of the peace in townships of less than four thousand inhabitants were to receive the "fees as are now or may hereafter be allowed by law." In townships of from nine hundred to four thousand inhabitants it was provided that a justice of the peace should receive not more than one hundred dollars in one month for work in criminal cases. In other townships they were to receive three dollars in each criminal case not exceeding forty dollars in any one month. In 1901 (Stats. 1901, p. 749) the townships of Kern County were classified "for the purpose of regulating the salaries of justices of the peace and constables." This was intended as an amendment to the act of 1897 above referred to. Under the provisions of the act of 1897 as amended by the classification of townships in 1901, the township in which plaintiff was a justice of the peace was of the first class, which by the amendment was raised to a population of five thousand and upwards, and the total compensation of the said justice by the terms of the statute was to be a fixed salary of one hundred and twenty-five dollars per month. We are of opinion, however, that the act as amended in 1901 does not regulate the compensation of justices of the peace "in proportion to duties," and is therefore in conflict with the constitution. The late case of Tucker v. Barnum,
The law of 1897 as amended in 1901 being unconstitutional, it follows that plaintiff is still entitled to three dollars in each criminal case just as he was before the passage of that act.
3. The complaint contained the following allegation: "That on the sixth day of October, 1903, plaintiff duly presented to the board of supervisors of said county for allowance, and filed with the clerk of said board his claim for his services performed and rendered in the said actions and proceedings as justice of the peace of said township, which said claim was duly itemized, giving names, dates, and particular services rendered, and was by the oath of plaintiff duly verified to be correct, and that the amount claimed was then justly due and that said claim was presented within a year after the last item of the account therein set out accrued. A copy of said claim is hereunto annexed, marked `Exhibit A,' and made a part of this complaint."
There was attached to the complaint as an exhibit a copy of the duly verified itemized claim.
In the foregoing allegation the complaint contained a sufficient statement of the steps taken by plaintiff in presenting his claim to the board of supervisors. The complaint stated a cause of action.
We advise that the judgment be affirmed.
For the reason given in the foregoing opinion the judgment appealed from is affirmed.
Henshaw, J., McFarland, J., Lorigan, J.
Van Dyke, J., dissented.
Concurrence Opinion
I concur.
There is no express authorization in the constitution for a classification of the townships of a class of counties by population, for the purpose of fixing the compensation of township officers. The constitution expressly provides only for a classification of counties by population. In the case of townships, therefore, a classification by population is not founded *686 on any constitutional distinction, and must find its justification in other reasons.
But it is recognized that a substantial difference in the population of the several townships of a class of counties will be ordinarily attended with a corresponding difference in the duties of the officers, and it has therefore been held that the legislature may classify the townships of a class of counties by population for the purpose of fixing the compensation of the township officers.
It is, however, not because of any constitutional distinction that this is permissible, but simply because a substantial natural reason exists for the creation of such classes, — viz., that the duties in a class of townships having a large population will be greater in amount than those of a class of townships having a smaller population. This is the only conceivable natural reason justifying such a classification, and it requires the fixing of the compensation upon a scale proportioned to the population of the different classes of townships. If the compensation be not so fixed, it is not "in proportion to duties," if the population is to be the measure of the duties, and it is only upon the theory that the population is such measure that such classification of townships is permissible.
Where it is apparent from the face of the act that the compensation in the different classes of townships of the class of counties, based solely upon differences in population, has not been fixed upon a scale proportioned to their respective populations, it seems very clear to me that the act of the legislature is in violation of the constitutional provision requiring the compensation to be in proportion to duties.
Under the decision in Tucker v. Barnum,
As the constitution expressly warrants the classification ofcounties by population, for the purpose of regulating the compensation of all township and county officers in proportion to duties, what is here said in no way affects the question as to the right of the legislature to fix the compensation of the county and township officers of the various classes of counties otherwise than in proportion to the population of the various classes. The classification being a proper one, because expressly authorized by the constitution, it has been held that the legislature may take into consideration other matters besides population in determining what is a compensation in proportion to duties (see Longan v. County of Solano,
Dissenting Opinion
I dissent.
In Tucker v. Barnum,
Although it is put on an entirely different ground, the facts show that the decision really is that the rate in different classes of townships is contrary to the constitutional mandate in question, unless the different rates are graduated to a scale so as to make them proportional to population, rather than in proportion to duties, a proposition expressly repudiated in the leading case on the subject, — namely, Longan v. Solano County,
It may be added that in Green v. Fresno County,