Payne v. Murphy

In the year 1911 the legislature enacted certain amendments to section 4256 of the Political Code relating to the compensation of officers in counties of the twenty-seventh class. San Luis Obispo was the only county in the state affected by that legislation. Subdivision 13 of the section mentioned was amended to read as follows:

“Justices of the peace, such fees as are now or may be hereafter allowed by law; provided, however, that in counties of this class a stenographer shall be appointed by the judge of the superior court in and for such counties, to hold office at the pleasure of said judge, whose duty it shall be to report and transcribe the testimony and proceedings in all preliminary examinations in all of the justices’ courts in and for each and every township in said counties, as provided by section 869 of the Penal Code; and whose further duty it shall be to report the testimony and proceedings in all inquests held by the coroner and transcribe the same into longhand and file a certified copy thereof with the county clerk. Such stenographer shall receive as compensation for his services the sum of $100 per month to be paid in the same manner and at- the same time as the salaries of other officers are paid;

and for all transcripts made as required herein he shall receive the same fees now allowed to phonographic reporters by section 274 of the Code of Civil Procedure; he shall also be allowed his necessary traveling expenses while engaged in the performance of his duties.” (Stats. 1911, p. 1165.)

The provisions of this subdivision, wherein it was provided that a stenographer should be appointed by the judge of the superior court, were added by the amendment. Acting under the authority assumed to be given by the amendment, on the 13th of May, 1911, the superior judge of the county of San Luis Obispo appointed appellant herein as stenographer to fill the office so created. Under this appointment, the stenographer proceeded to perform the duties of his office until the sixth day of June, 1911, when he demanded that the auditor deliver to him a warrant for the sum of $58 in pay•ment of his salary for that portion of the preceding month during which he had served. The auditor refused to draw such warrant, and this proceeding of mandamus was brought to compel that officer to comply with the demand of petitioner. A demurrer to the petition was thereafter sustained, without leave to amend, and judgment followed in favor of respondent, from which an appeal has been taken.

The contention of respondent is that the act in question is special in its nature and violative of the prohibition of the constitution in that regard. It seems to be conceded by all parties that the power of the legislature to classify counties by population is a power to be exercised for the limited purpose of enabling the compensation of the various officers to be fixed and adjusted. The constitution, in section 5 of article XI, seems to make that proposition very clear, and our supreme court has so held in a number of cases, of which we cite: Pratt v. Browne, 135 Cal. 649 , [ 67 Pac. 1082 ]; Sanchez v. Fordyce, 141 Cal. 427 , [ 75 Pac. 56 ]. If the effect of the amendment referred to was to create an office, .which office is made one special to counties of the twenty-seventh class alone, then the objection of respondent that such legislation is unconstitutional must be sustained. We think, that no other construction can be given to the language used by the legislature. The stenographer was one to be appointed by the judge of the superior court, and he was to “hold office at the pleasure of said judge,” and “receive as compensation for

The judgment is affirmed.

Allen, P. J., and Shaw, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 3, 1912.