Butler v. Williams

Prior to the year 1925 the salary of the county surveyor of the county of Sacramento, a county of the seventh class, was fixed by section 4236k of the Political Code at the sum of $2,400 per annum. In that year said section of the code was amended to read as follows:

" Counties of the Seventh Class. Surveyor. Sacramento. In counties of the seventh class, the county surveyor shall receive a salary of two thousand four hundred dollars per annum; and in addition thereto all necessary expenses for work performed in the office and all necessary expenses and transportation for work performed in the field; provided, • however, commencing January 3, 1927, in counties of the seventh class the county surveyor shall receive a salary of one hundred twenty dollars per annum, and in addition thereto all necessary expenses for work performed in the office and all necessary expenses and transportation for work performed in the field.” [Stats. 1925, p. 811.]

The amendment consisted in adding to the section as it originally stood all that portion of said amended section beginning with the word “provided.”

Thereafter at the general election held in said county in November, 1926, the petitioner herein was elected to said office of county surveyor for the full term of four years, beginning January 3, 1927. He thereafter qualified as such county surveyor and on the third day of January, 1927, entered upon the discharge of the duties of said office, and has ever since continued to discharge said duties. Some months

The matter came on for hearing before said District Court of Appeal, resulting in a judgment in favor of the petitioner as prayed for in his said petition. Upon the application of the respondent herein said proceeding was transferred

We can see but little, if any, difference in principle between the question here presented and that which was determined in the case of De Merritt v. Weldon, 154 Cal. 545 [16 Ann. Cas. 955, 98 Pac. 537 ]. In this latter case, the facts recited in the opinion show that the plaintiff therein was elected city marshal of the city of Ukiah. At the time of his election the salary of said office was sixty dollars per month. This salary had been fixed by the board of trustees of said city under the power given to said board by section 855 of the County Government Act then in force, which section read in part as follows: “the clerk, treasurer, marshal and recorder shall severally receive, at stated times, a compensation to be fixed by ordinance by the board of trustees. ’ ’ Thereafter, and during said plaintiff’s first term of office, the board of trustees created the office of “Executive Officer,” prescribed the duties of such officer and fixed his salary at seventy-five dollars per month. On the same day it fixed the salary of the marshal at ten dollars per month. Plaintiff was appointed as such executive officer and continued to hold such office until 1907 ’and drew the salaries of both offices, having been re-elected in 1904 and 1906. In March, 1907, the board of trustees revoked his appointment as executive officer. Plaintiff thereupon claimed the salary of sixty dollars per month, which had been fixed by said board of trustees by ordinance prior to the date of his first election to the office of marshal. Payment thereof was refused and he instituted said action for the purpose of compelling the payment of his salary in the amount of sixty dollars per month. The claim was made there, as it is made here, that while the legislative body has the power to fix the salary of the officer, it is precluded from fixing the salary at so small an amount that its action would result in the destruction of the office. This is clearly made to appear from the following language found on page 549 of the opinion: “It is urged that the effect of the provisions of the Municipal Corporation Act (sec. 855) is to require that the trustees shall fix a reasonable compensation, that, while it is for them to determine what is a reasonable compensation, they are at least precluded from fixing it at so small an amount that their action results in the destruction of the office of marshal,

There is no substantial difference between the authority given the legislature by section 5 of article XI of the constitution to fix the salaries of the county officers and section 885 of the Municipal Corporation Act empowering the board of trustees to fix the salaries of the marshal and other officers of cities of the sixth class. If there is any difference between these two grants of power it is in the use of the words “in proportion to duties” found in the section of the constitution above mentioned. But the significance of this phrase has been determined in the case of Green v. County of

In view of these express rulings of this court we are constrained to hold that section 4236k of the Political Code, as enacted in 1925, fixing the salary of the county surveyor of the county of Sacramento at the sum of ten dollars per month, is not repugnant to section 5 of article XI or to any other provision of the constitution of this state, but that the enactment of said section was a valid exercise of power given to the legislature by the constitution, and its action in "that respect is not reviewable by the courts of the state.

Nor do we think the petitioner has any just cause to complain. The salary of the office of county surveyor of said county was fixed at the sum of ten dollars per month more than a year before he was elected to that position. He knew at the time he became a candidate for said office and at the time he qualified and took the oath to perform the duties of the office what the salary was and would be during the term for which he was elected. The fact that he accepted the office with the salary as fixed at that time and that he has continued to discharge its duties is a conclusive answer to his contention that the legislature by fixing the salary at this low figure has thereby destroyed the office and that no competent person would perform the duties thereof for the amount fixed as salary. No doubt the prestige enjoyed by petitioner as county surveyor of his county and the right given him under the statute to engage in private practice are of substantial value, to him. Furthermore, he is provided by the county with a suitable office, together with furniture, heat, light and care of said office. As appears by the return of respondent, the board of supervisors has relieved petitioner of all engineering and other work required in the construction of bridges, highways and other buildings constructed by the said county, and has engaged other engineers to perform this work. That it has this power was expressly held in the recent case of Cope v. Flannery, 70 Cal. App. 738 , 750 [ 234 Pac. 845 ], It must be presumed that the legislature in enacting said section of the

The writ is denied.

Langdon, J., Seawell, J., Richards, J., and Waste, C. J., concurred.

Under section 5 of article SI of the constitution the legislature is required to provide for the election or appointment in the several counties of the officers specifically mentioned and for such other county officers “as public convenience may require,” and shall prescribe their duties. The same section also requires the legislature to fix the compensation of such officers “in proportion to duties.” By section 4013 of the Political Code the legislature has provided in effect that public convenience requires a county surveyor, for in that section a surveyor is and for fifty years or more has been named as one of the officers of the county. His official bond is provided for in section 4022 of the Political Code. He must be a licensed surveyor. (Sec. 4214, Pol. Code.) His duties generally are defined in sections 4214 to 4221, inclusive, of the Political Code. Other duties are required of him by the legislature. (See Stats. 1905, p. 102.) Sacramento County contains some 963 square miles of territory, approximately that of the state of Rhode Island, and has a population of 150,000 or more. It seems to me.a palpable absurdity to say that the constitutional mandate to fix the compensation “in proportion to duties” has been complied with in the case of the surveyor of Sacramento County when said compensation is fixed at ten dollars per month. The constitutional provision contemplates that the public officers therein provided for shall be justly compensated for their services. (Gwynn v. McKinley, 30 Cal. App. 381 , 389 [ 159 Pac. 1059 ].) And when the legislature has, as I think here, failed to comply with the purposes of -the constitution it is the duty of the court to, declare the law invalid. I cannot subscribe to the statement in the main opinion that the matter of compensation is exclusively within the jurisdiction of the legislature and not.

Rehearing denied.

Shenk, J., and Preston, J., dissented.