Cope, J. concurring.
This was a proceeding by the plaintiffs, tax-payers, by petition for certiorari to bring up certain proceedings of the Board of Supervisors of Sacramento county. These proceedings involved an ordinance, number ninety-six, the second and third sections of which are as follow; “ Section 2. To the Under Sheriff, one hundred and fifty dollars per month; to the County Clerk’s chief deputy in the District Court, one hundred and fifty dollars per month; to the County Clerk’s chief deputy in the Recorder’s oflice, one hundred and fifty dollars per month; to the County Clerk’s chief deputy in the general office, one hundred and twenty-five dollars per month. Sec. 3. Section one of Ordinance No. 78, of which this section is amendatory, is hereby amended so as to read as follows: Sec. 1. The office of Assistant Clerk of the Board of
The petitioners allege that the Supervisors have allowed the salaries to the Assistant Clerk of the Board and to the other Clerks mentioned; and that the Auditor will draw his warrants for them, and they will be paid if the Court does not interpose.
The only difficulty we have experienced hi the case is the technical question of the remedy selected by the relators. It is argued for the defendants that certiorari will not lie in such a case; that this writ is limited to a review of judicial actions and proceedings by the inferior tribunal, and that this ordinance is a legislative act and not of a judicial nature. We were strongly inclined, on the argument, to this view; but a further examination has led us to abandon it. When the term “judicial” is applied to the action of these Boards, it is not to be received in the sense usually applied to Courts of justice. Thus, Judge Bronson speaks, in Supervisors, etc. v. Briggs, (2 Denio, 26) of the settlement and allowance of an account by the Board as an adjudication of the matter by a proper tribunal, and therefore conclusive. (See also, 9 Wend. 508.) So in Gillespie v. Broas (23 Barb. 378). In People v. Mayor of New York, (5 Barb. 45) the Court say: “There can be no doubt that a, certiorari will lie to review the judicial acts of municipal corporations. That was admitted in the case of Mount Morris Square, (2 Hill, 14) cited by the defendant’s counsel, and is in conformity with the decisions of the late Supreme Court in several antecedent cases. (Elemendorf v. The Mayor of New York, 25 Wend. 693; Le Roy v. The same defendants, 20 John. 430.) The authorities are equally clear, that if the act complained of is simply ministerial, it cannot ordinarily be reviewed on certiorari. Such was the ordinance of the Common Council for the construction of the sewer in question. That was a simple exercise of their ministerial, or, if I may use the expression, legislative power. That, if authorized by their charter, which it clearly was, resolved itself into a question of expediency, solely for their consideration, and which cannot be reviewed here. But although the ordinance itself cannot, I think, be annulled by this Court, yet it is competent for us, in a proper case, to vacate the assessment of the Common Council in affirming those proceedings; as they then acted in a judicial capacity. That may be, although they do not constitute an ordinary judicial tri
In Gillespie v. Broas, (23 Barb. S. C.) it was held that chancery would not interpose where the Supervisors had no power to select a site for a certain building, and where certain orders were issued without authority, but that certiorari was a proper remedy. In Wilcox v. Washburn, (16 Johns. 49) it was decided that the appointment of a Constable by Justices of the Sessions was a judicial act, revisable by certiorari.
The People v. The Supervisors of El Dorado county (8 Cal. 58) is closely analogous to this in principle. There the Board of Supervisors allowed the County Recorder seventy-five cents each for drawing certain warrants. This Court held that certiorari was the proper remedy. On looking into the ordinance brought up, it will be seen that the Board
2. The next question is as to the legal authority of the Board to create the office of Assistant Clerk, and to raise the salaries of the other clerks above $1,200 per annum. And this question involves the construction of the Act of 1858, known as the Consolidation Act. That act is to be found in the Statutes of 1858 (269). The bill seems drawn in a spirit of jealous distrust, and is very restrictive in its provisions. By the twenty-fourth section, a Clerk of the Board of Supervisors is allowed a salary of $2,500, “ County Clerk’s deputies, not exceeding six in number, $1,200 per annum each, in the discretion of the Board of Supervisors.” This last sentence is not very aptly expressed. But we think there can be no reasonable doubt of its meaning. The limitation upon the amount of the salary to these Clerks is absolute—it cannot exceed the amount prescribed; the only discretion is as to the number of the Clerks and the salary below the maximum; that is, the Board-may, in their discretion, prescribe a number less than six, or pay a salary less or equal to $1,200, but cannot exceed the number or the sum. Upon any other construction, the power of the Supervisors would be subject to no limitation at all, and the prescribing of the number and the salaries would be a senseless provision. Effect must be given to all the words of the section, and this is done by restraining the exercise of the discretion given within the limits indicated.
This act is an enabling statute, creating a Board with special powers and jurisdiction, and the Board has only the power shown to be conferred by the act. The case of the People ex rel. v. Lawrence (6 Hill, 244) is in point. In that case, the Supervisors audited an account for expenses incurred by one of the Board in defending against a criminal
“If this had been a case where the Supervisors had authority to allow the claim, I agree that it would have been the duty of the Treasurer to pay, without inquiring whether the account was allowed upon insufficient evidence, or at too large an amount. But here, the Supervisors had no jurisdiction over the subject matter, and that fact appeared upon the face of the account which was presented for payment. Their act was a mere nullity, and it was the duty of the Treasurer to withhold payment.”
We think, therefore, that the act did not warrant the Supervisors in making this appointment of Assistant Clerk, or in raising the salaries.
We quite agree with the counsel for respondent, that the salary allowed is inadequate, and that the policy of the State is not to withhold from competent officers—as these are represented to be—adequate remuneration for them services; but this consideration is for the Legislature. We have no power to remedy this hardship, nor have the Supervisors.
Judgment reversed and cause remanded.
I concur in the judgment of reversal, and in most of the views expressed in the opinion of Mr. Justice Baldwin. The powers of the Board of Supervisors are derived exclusively from the statute, and the construction of this statute was necessarily involved in the proceedings complained of in this case. To that extent, these proceedings were judicial in their nature, and are therefore subject to review upon certiorari as the only remedy provided by law.
I agree with Mr. Justice Baldwin in the construction of the statute, but differ from him as to the character of the ordinance under consideration. I regard the ordinance as a mere legislative act, involving in its passage no exercise of “judicial functions,” as those terms are used in section four hundred and fifty-six of the Practice Act. I therefore dissent from the judgment of reversal.