The three petitioners, who are the clerk and two deputy clerks of the Municipal Court of San Francisco, on their own behalf and in behalf of some 83 other deputy clerks, seek by this proceeding in mandamus to compel respondents, the members of the Civil Service Commission of San Francisco and its secretary, to approve for transmittal to respondent controller the payrolls for the clerk and deputy clerks of the municipal court covering the period subsequent to the 18th of September, 1947. Such submission and approval are required under the provisions of the city charter before the controller may issue pay warrants.
The respondents’ refusal to act is based on the fact that the proposed payrolls for the period subsequent to September 18, 1947, are predicated upon salaries fixed by the state Legislature in 1947 by statute, which salaries are in excess of
At its 1947 session the Legislature enacted chapter 1113, Statutes of 1947, which added section 6a to the Municipal Court Act of 1925. (2 Deering’s Gen. Laws, Act 5238.) That statute is entitled: “An act authorizing the establishment of municipal courts, prescribing their constitution, regulation, government, procedure and jurisdiction, and providing for the election and appointment of the judges, clerks and other attaehés of such courts, their terms of office, qualification and compensation and for the selection of jurors therein.” By that statute chartered cities with a designated population are permitted to create such courts under certain conditions. San Francisco availed itself of this permission in 1929, and the Municipal Court of the City and County of San Francisco was created in 1930. Prior to the legislative enactment of 1947, section 6 of the Municipal Court Act applicable to cities of the first class, that being the classification of San Francisco, prescribed the salaries to be paid the judges, the clerk and the jury commissioner. Prior to 1947, section 6 also provided that the clerk might appoint “such other deputies and attaches as may bé provided for by the board of supervisors in the'annual salary ordinance.” As to the Los Angeles Municipal Court, sections 7, 7a, 7b and 7c of the Municipal Court Act for many years has fixed the salaries of the judges, clerk, marshal, referees, deputy clerks, assistant and deputy marshals and commissioners. In 1947, by chapter 1113, the state Legislature provided that the clerk might appoint some 85 deputy clerks, specifying in some instances the particular duties to be performed by certain of these deputies, and fixing the pay rates for the clerk and all of his deputies.
Prior to the enactment of chapter 1113, the respondent commission, acting pursuant to the quoted portion of section 6 which was superseded by chapter 1113, submitted to the board of supervisors a proposed salary ordinance for the fiscal year 1947-1948 which included salary rates for all positions paid out of city and county funds, including the clerk and deputy clerks of the municipal court. In all cases these proposed salaries were lower than those subsequently fixed by chapter 1113. The board of supervisors passed this ordinance and it became effective for the fiscal year in question. After the Legislature had passed, and the governor had signed, chapter 1113, but before it became effective, the board
An examination of the constitutional provision providing for the creation of municipal courts (art. VI, § 11, as amended in 1924), of the Municipal Court Act, and of the cases interpreting them, demonstrates to a certainty that the state Legislature has the power to fix the salaries of all officers and attachés of all municipal courts of the type provided in article VI, section 11, and that where the state has acted, the governing body of the city or city and county has no power at all over such salaries. It should be here mentioned that attached to the present petition are two opinions of the attorney general, two of the legislative counsel and two of the San Francisco city attorney (the latter now opposing the granting of the writ), all concluding that the state’s power is paramount over the salaries of the clerk and deputy clerks of the Municipal Court of San Francisco.
There is not here involved the proper interpretation of the so-called “home rule” provisions of the Constitution. While it is true that article XI, section 7%, of the Constitution refers to the power of a chartered city over “inferior” courts, and that section 8% of article XI, refers to the power of a chartered city over “municipal” courts, it is settled that neither section applies to the “municipal courts” provided for by article VI, section 11.
(Kenyon
v.
Johnson,
Article VI, section 11, provides for the establishment of municipal courts in chartered cities having a population of 40,000 or more, provides how such courts might be created in such cities, and then provides:
‘ ‘
The legislature shall provide by general law for the constitution, regulation, government and procedure of municipal courts. . . . The manner in which, the time at which, the term for which the judges, clerks and other attachés of municipal courts shall be elected
Under this section it is quite apparent that, except for the sole question as to whether a municipal court shall exist in the municipality, the complete control over municipal courts is placed by the Constitution in the Legislature and not in the city or city and county. The available ease law clearly so holds. In
Simpson
v.
Payne,
In
Chambers
v.
Terry,
“In this regard, we adopt portions of the opinion filed by the five judges of the trial court, which are as follows:
“ ‘It is still our view that the Constitution of municipal courts from every viewpoint, except only that of the bare question whether they shall exist at all or not in [a] given locality, is a state, rather than a municipal affair. This seems to us necessarily to follow from the requirement of section 11 of article VI of the State Constitution that “the legislature shall provide by general law for the constitution, regulation, government and procedure of municipal courts and for the jurisdiction thereof except in particulars otherwise specified in this section, and for the establishment of municipal courts in cities or cities and counties governed under charters framed and adopted under the authority of this Constitution and having the population hereinbefore in this section specified,” i. e., more than 40,000 inhabitants. The only “particulars otherwise specified” in section 11, that is particulars in which the subjects mentioned are excepted from the requirement that they be governed by “general law” have to do with the right of the voters of the municipality to decide
whether they wish such courts or do not wish them. They can, if they choose, have courts of the sort prescribed by general law under authority of article VI of the Constitution. But they must choose whether they want those courts or do .not want them. They must either take them as the general law constitutes them or not take them at all. The circumstance that such courts are not in their functions or jurisdiction treated as falling within the category of municipal affairs is patent. . . . ’ ”
The Supreme Court in
Wilson
v.
Walters,
These conclusions are not seriously attacked by respondents. They do, however, make several contentions that require further comment. They first point out that section 11 of article VI expressly confers on the Legislature the power to fix the compensation of municipal judges, and of other justices and judges of courts of record. They interpret that provision as being a grant of power to the Legislature to fix only the salaries of the judges, and by implication a denial of the power to fix any other salaries. To state the proposition is to refute it. The power to fix the salaries of the attachés springs from that portion of article VI, section 11, conferring on the Legislature the power to provide for the “constitution, regulation, government and procedure” of the municipal courts. That was the express holding of the Simpson case,
supra.
It is, of course, elementary law
Respondents next point out that from 1929 to 1947, the Legislature has consistently recognized the power of the local board of supervisors to fix the salaries of some of the attaehés of the San Francisco Municipal Court under section 6 of the Municipal Court Act. It is urged that this constituted some sort of a waiver and a recognition that such employees were municipal employees subject to municipal control. The argument overlooks the fact that San Francisco has been permitted to fix the salaries in question not by reason of any charter provision, but solely by virtue of the provisions of section 6 of the state act, repealed in 1947, conferring that power on the municipality. The question is not what the state Legislature has heretofore done in delegating this authority to the city, but whether the Legislature has constitutional power to withdraw a delegation of power once granted. Respondents’ argument amounts to the contention that, although the Constitution confers the power to fix the salaries of attaehés on the state Legislature, if the state Legislature once delegates that power, such delegation is irrevocable. It needs no citation of authority to establish the principle that the Legislature may not thus divest itself of its constitutionally granted powers.
The principal argument of respondents is that the 1947 legislation itself recognizes that these employees, except as to salaries, are “municipal employees” and it is contended that
These arguments are all unsound. There can be no doubt that these employees are municipal employees, but they are municipal employees of a hybrid nature. By constitutional provision the state Legislature is the body that is given the power to regulate such employees, including the power to fix their salaries. But in many other respects they are municipal employees. Thus, it was held in the
County of Los Angeles
v.
Industrial Acc. Com.,
None of the other arguments made requires discussion. It is quite apparent that petitioners are entitled to have their salaries paid in accordance with the state law. Let a peremptory writ of mandate issue ordering respondents to approve the payrolls as submitted and to issue pay warrants accordingly.
Ward, J., and Bray, J., concurred.
A petition for a rehearing was denied December 4, 1947, and respondents’ petition for a hearing by the Supreme Court was denied December 22, 1947. Edmonds, J., and Carter, J., voted for a hearing.