214 P. 56 | Cal. | 1923
This is an original application for a writ ofmandamus. Charles L. Wines, the petitioner, is a deputy in the office of the superintendent of schools of Alameda County. When the superintendent of schools began his term on January 6, 1919, he was allowed an assistant, a *651 chief deputy and an additional deputy, but in 1921 the legislature allowed the superintendent of schools an additional deputy. The petitioner fills the position thus created for the first time by the legislature of 1921. His petition, he says, "involves the right of the legislature to increase the number of deputies allowed to a county officer, who at the commencement of his term has a fixed salary and deputies paid by the county."
This question was determined adversely to the contention of the petitioner in the recent case of Forward v. County of SanDiego,
The petitioner seeks to have us overrule this decision, claiming that we have therein given an erroneous construction to section 4290 of the Political Code. He also contends that the matter is of very great importance to counties and county officers, and for that reason prays a careful reconsideration of the matter.
We have therefore again considered the question which is presented by the petitioner. The respondent makes no argument and presents no brief.
We will not undertake to follow the argument of the petitioner in detail. Suffice it to say that the petitioner contends that the question involved here is not one of constitutional law but primarily one of statutory interpretation, and that section 4290 of the Political Code in the light of its legislative history beginning with the enactment of the first County Government Act in 1883 (Stats. 1883, p. 299) down to date shows that the provisions of section 4290 of the Political Code do not apply to Alameda County wherein the legislature has provided for deputies to be paid directly from the county treasury. This legislation originally was in the form of a separate act known as the County Government Act and in 1907 was for the first time incorporated in the Political Code, sections 4000 to 4235, inclusive (Stats. 1907, pp. 354-558). We will, therefore, use the expression "County Government Act" and "Political Code" indifferently throughout this opinion in referring to the provisions of the statute controlling the salaries of county officers. The first clause of section 4290 of the Political Code reads as follows: "The salaries and fees provided in this title *652 shall be in full compensation for all services of every kind and description rendered by the officers named in this title either as officers or ex-officio officers, their deputies and assistants, unless in this title otherwise provided, and all deputies employed shall be paid by their principals out of the salaries provided in this title, unless in this title otherwise provided. . . ."
As we construed this section in Forward v. County of SanDiego, supra, the phrase "unless in this title otherwise provided" referred to the provisions made for the payment of deputies in the County Government Act and we held that where assistants were appointed who were not specifically provided for in the County Government Act, they could not be paid from the county treasury, but must be paid by the officer, if paid at all. Consequently, it followed under numerous prior decisions of this court that where the legislature relieved the officer of that necessity by making the salary of the deputy payable by the county, it, to that extent, ipso facto increased his salary.
The argument now advanced to support a different conclusion is substantially as follows: The phrase "unless in this title otherwise provided" in section 4290 of the Political Code, in the light of the history of the section, applies to those counties such as Alameda County, wherein provision is made for the payment of deputies by the county instead of by the county officers. Consequently, it is urged that where under the code a county officer is allowed any deputy payable from the county treasury, in his case it is "otherwise provided" in the title and consequently the requirement in the section that the officer must pay such deputy does not apply and therefore the legislature may provide for an additional deputy who may also be paid from the county treasury without increasing the compensation of the officer.
[1] It is true in one sense that this is a question of statutory construction, but it is also true that every statute must be construed in the light of the constitutional restrictions upon the power of the legislature so that it is necessary to consider those constitutional provisions in arriving at the proper interpretation of the statute.
Petitioner's argument proceeds somewhat in this fashion. Section 164 of the County Government Act of 1883 (Stats. 1883, p. 361) provided as follows: *653
"The salaries and fees provided for in this Act shall be in full compensation for all services of every kind and description rendered by the officers therein named, their deputies, and assistants; and all deputies employed shall be paid by their principals, out of the salaries hereinbefore provided; . . ." Section 163, subdivision 15, of this act (page 339), in providing for salaries of the seventh class provided that a limited number of deputies should be paid salaries from the county. It is pointed out that this provision in section 164 is inconsistent with the one providing for the payment of deputies by the county itself and, therefore, the argument is that section 164 was intended to apply only to counties in which a lump sum was fixed as the salary of the officer, and not to counties where the county pays the deputies directly.
The petitioner's argument proceeds upon the theory that there are two classes of counties in the County Government Act, one in which the county officers are paid a lump sum and the other in which the deputies are paid directly by the county and presumptively the amount allowed to the county officer is for his own personal services. This position cannot be maintained under the previous decisions of this court. The County Government Act never has used the phrase "a lump sum" and this nomenclature was introduced into our legal literature in connection with the alleged unconstitutionality of the County Government Act in providing in some counties for deputies to be paid by the county and in others that all deputies should be paid by the principal, it being contended that this differentiation destroyed the uniformity of county government required by the constitution (Tulare County v. May,
The question involved in the case at bar was decided against the petitioner, in principle at least, in 1892 in the case ofDougherty v. Austin,
Section 164 of the County Government Act of 1883 (Stats. 1883, p. 361) was renumbered as section 211 (Stats. 1885, p. 194) and was amended in 1887 (Stats. 1887, p. 207). By this amendment a proviso was inserted after the above-quoted language as follows: "and provided further, that whenever, in the opinion of the Board of Supervisors, the salary of any county officer in the third, fourth, fifth, *654 twelfth, thirteenth, fifteenth, twentieth, twenty-second, twenty-third, twenty-fourth, twenty-sixth, twenty-ninth, thirty-second, thirty-third, thirty-fourth, thirty-sixth, thirty-seventh, thirty-eighth, thirty-ninth and forty-first classes, as fixed and provided in this Act, is insufficient to pay a reasonable compensation for the services required to be performed, the said Board shall allow such officer a deputy, or such number of deputies, as in their judgment may be required to do the business of such office, in connection with the principal, at a salary not to exceed one hundred dollars per month, to be paid at the times and in the manner that said principal is paid; . . ."
The effect of these provisions was considered in the case ofDougherty v. Austin,
It was thus early established that the allowance of additional deputies to be paid by the county to an officer who was receiving a lump sum under the County Government Act, and who was by the provisions of section 211 of the County Government Act required to pay all deputies and assistants from such salary, was unconstitutional because it increased the salary of the officer. This view has ever since been consistently adhered to by this court and in the late case ofCounty of Santa Barbara v. Janssens,
In Welsh v. Bramlet,
The serious consequences of these last three decisions resulted from the fact that if the law was not uniform, the entire County Government Act, at least as to salaries, was void. Indeed, it was claimed to be void in Tulare County v.May,
It is important to the point under consideration, however, to recognize the basis upon which the court overruledWelsh v. Bramlet, supra, Walser v. Austin, supra, Farnum *656 v. Warner, supra, and held that the County Government Act with these two distinct systems of paying deputies was a uniform system and complied with article XI, sections 4 and 5, of the constitution with reference to the duty of the legislature in the establishment of county governments. In order to appreciate the force of this decision it will be necessary to quote from it extensively:
"To allow county officers to appoint deputies whose fixed salaries are to be paid out of the county treasury is, of course, unobjectionable so far as the mere power to appoint deputies is concerned, for by section 61 (Stats. 1893, p. 367) these same officers are authorized to appoint as many deputies as a prompt discharge of the duties of their respective offices may require, and this general authorization embraces all of the special authority conferred by the clauses of section 173 above quoted. [Section 173 is the section fixing the compensation of officers in counties of the eleventh class and allowing certain deputies to be paid from the county treasury.] That is to say, these officers may, under section 61, appoint the same deputies that they are allowed to appoint under section 173, and they are not obliged under either section to appoint any more deputies than a prompt discharge of the duties of the office may require. These sections do not destroy the uniformity of the law, nor do they introduce any special regulation in counties of the eleventh class. So far as the power to appoint deputies is concerned the rule is general and uniform throughout the state, and that rule is that such county officers as are allowed to act by deputy may everywhere appoint as many deputies as a prompt discharge of their official duties demands. But this, as I am fully aware, does not meet the objection of appellant, which is that in this instance the officers are allowed to appoint deputies whose salaries are to be paid out of the county treasury. This objection would be more serious, it seems to me, if the law contemplated the payment of salaries of deputies from any other source. But it does not.
"There are two rules for the compensation of deputies in the different counties of the state. In most of the classes a lump sum is allowed to the principal, out of which he is required to pay his deputies; in a smaller number of classes — including the eleventh — the principal is allowed a *657 fixed salary, and certain deputies are allowed fixed salaries, but in both cases the salaries of all are by the express terms of the statute, to be paid out of the county treasury. The whole question, therefore, resolves itself into this: Can the legislature establish one rule of compensation of deputies in one class of counties, and a different rule in another class of counties? I can see no constitutional objection to such an exercise of power. Under either rule a compensation proportionate to duties may be secured; and for the purpose of securing such compensation a division of counties into classes is expressly authorized, and, when a statute or a provision of a statute has no other object or effect than to regulate compensation of officers, the provision or statute is uniform and general if it applies equally to all the counties of any class, no matter which of the two rules above referred to is followed."
The argument of the court in sustaining the uniformity of the County Government Act is substantially this: In all counties all deputies are in effect paid from the county treasury. It does not destroy the uniformity of the County Government Act to pay some of these deputies directly from the county treasury, while in other counties the money passes through the hands of the officer to the deputy. It is obvious that this argument leads to the conclusion that in both counties additional deputies are to be paid by the officer from his own compensation. Otherwise, we at once have the uniformity of the system destroyed because we have two different classes of counties, in one the legislature may from time to time give additional deputies to the officers without violating the constitutional inhibition and without increase of compensation, while in others it cannot. We called attention to this situation in Forward v. County of San Diego, supra.
In San Francisco v. Broderick,
As we understand this decision it holds that notwithstanding the fact that the city and county of San Francisco was of a class in which the principal officer was allowed certain deputies, that he was required under the provisions of section 216 of the County Government Act of 1893 to pay any additional deputies and assistants himself. This is a complete answer to the contention of the petitioner that section 216 or its successor (Pol. Code, sec. 4290) does not apply to counties of the class in which a county officer is allowed paid deputies. If in such counties the county officer was required to pay all deputies in addition to those provided by law, it follows that any statutory scheme by which he is relieved of that responsibility is to that extent an increase of his salary within the meaning of the constitution. This squarely brings such counties within the rule announced in Welsh v. Bramlet,supra, and Dougherty v. Austin, supra.
In County of Calaveras v. Poe,
[2] We have thus far dealt with the proposition advanced by the petitioner that section 4290 of the Political Code did not justify the conclusion that its language was applicable to counties in which deputies were provided and authorized to be paid directly from the treasury by the County Government Act. But other considerations lead to the same conclusion. In order that public funds may be expended it is essential that such expenditure be authorized by law, as was said by this court inIrwin v. County of Yuba,
[3] If it is conceded, as it must be under the authorities above quoted, that to prevent the inevitable decrease of the officer's salary due to payments necessary to be made by such officer to a necessary deputy by authorizing the county to pay such deputy is an increase of the salary of the officer within the meaning of the constitutional inhibition against increasing the salary of an officer during his term of office, then it must follow that without the express statutory declaration in section 4290 of the Political Code, requiring the officer to pay all additional deputies not otherwise provided for, that a statute passed during his term of office authorizing the payment of such additional deputy from the county treasury is an increase of salary within the meaning of the constitutional provision, no matter whether the officer was originally paid a lump sum or was, in addition to his own compensation, allowed a certain number of deputies paid by the county. If there is an error in this process of reasoning it arises from the conclusion long ago arrived *661 at by this court that to prevent an inevitable decrease of salary is an increase of compensation within the meaning of the constitution. This question has been too long settled in this state to justify its reconsideration.
The petition is denied.
Lennon, J., Kerrigan, J., Myers, J., Lawlor, J., and Waste, J., concurred.