74 Cal. 413 | Cal. | 1887
During the month of July, 1887, the petitioner was a regularly appointed and acting deputy county clerk of the city and county of San Francisco, being register clerk of department 4 of the superior court of said city and county. His salary was. fixed by law at $175 per month. In August, 1887, he presented his demand for his salary for the preceding month of July to the respondent, who was and is the auditor of said city and county, and he refused to audit the same. Petitioner then commenced this preceding in mandamus in this court to compel the respondent to audit said demand.
The refusal of the respondent seems to have been based mainly upon these grounds: —
The board of supervisors passed an order fixing the estimate of expenses for “county clerk’s deputies and copyists’ salaries,” for the year at seventy-two thousand dollars, and providing that such expense should be limited to that amount. And by an act of the legislature relating to said city and county, passed February 27, 1878, — usually called the one-twelfth act, — it was enacted that neither the board of supervisors, nor any other officer having the power “to authorize or contract liabilities against the treasury,” shall authorize, contract for, pay, etc., in any one month, any demand or demands against the treasury, or any of the funds thereof, which shall exceed one-twelfth part of the amount allowed by laws existing at the time of such contract*416 authorized, etc., to be-expended within the fiscal year of which said month is a part. (Worley’s Consolidation Act, p. 219.)
The said demand upon respondent was made on behalf of petitioner by the county clerk of said city and county, who at the same time presented demands of other deputy clerks and copyists in said month -of July, which amounted, in the aggregate, to over eight thousand dollars, and respondent refused to audit any of them, because they were in excess of one twelfth of the seventy-two thousand dollars which the board had declared to be the limit of such expenses for the year, as aforesaid.
But this ground of refusal was expressly held by this court to be untenable in Cashin v. Dunne, 58 Cal. 582. That case was mandamus against the auditor on application of a deputy street superintendent to compel the former to audit the monthly salary of the latter. The defense set up was, that to audit the demand would be to allow in one month more than one twelfth of the whole amount appropriated for the current fiscal year by the board of supervisors for the payment of salaries of deputies of the office of superintendent of streets. But the court held that the “one-twelfth act (so called) has no application to the auditing and payment of demands for salaries of officers whose appointment is provided for and salaries fixed by law.” And we see no good reason for overruling that case, as we are asked to do by counsel for respondent. Salaries are not liabilities against the treasury which rest upon any authorization or contract by the board of supervisors, or any other officer. They are fixed by law, and are not subject to the control of such officers. They are payable out of the general fund, and are not limited to any particular part of that fund which the board may choose to set apart for their payment.
Respondent contends that the writ should not issue,
Let the writ issue as prayed for.
Searls, C. J., Sharpstein, J., Temple, J., McKiif. stry, J., Paterson, J., and Thornton, J., concurred.