Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-12-24

entitled to receive s75 per month for his salary
as member of the Board of Supervisors. But
IL is contended on the part of the inforrner or
plelntlh that the Act is unconstitutional and
VOID, and for that reason the defendant is guilty
OF the ofense OF charging and collecting lille
gal lees or salary, and in refusingsaud neglect
ing TO perform the official duties pertaining to
ms once by permitting Bates and Jackson to
charge and collect their salaries under the same
circumstances that he charged and collected
his own salary; but such is not the law The
defendant acted not only under the advice of
the District Attorney, the legal adviser of the
county officers, but we are bound to presume
that the Legislature, in obedience to their duty,
made solemn by their oaths of Office passed
upon and determined that the Act was
constitutional and that they had not
transcribed their legitimate Constitutional
power in enacting the statute Cooley Constitu-
uonal Limitations, page 221). And the defend
ant is not bound tn be wiser than the District
Attorney and the Legislature, including the
Governor who approved the Act, and he Is not
guilty OF any public otfense in claiming and re-
celylng the salary allowed by such Act In the
case OF the State VS.. Carroll, Am. Rep. 42S, the
Court said: Every law of the Legislature.
however repugnant TO the Constitution, has not
only the appearance and semblance of author
1ty, but the force of law. 1t cannot be ques-
toned at the bar of private Judgment and if
thought unconstitutional resisted, but must be
received and obeyed as, to all intents and pur-
poses, law, until questioned in and set aside by
the Courts. This principle is essential To the
doctrine that a law of doubtful constitutionality
may be presumed to be constitutional until iudi-
cially determined otherwise, and that a law
manitestly unconstitutional cannot be so pre-
sumed, has no existence as applicable to the
citizen" The case OF Miller VS.. Dunn 72 Cal.
462, was decided upon this principle.
Then an unconstitutional Act of the Legisla-
ture may have the force of law, for some pur-
poses, to protect the citizen acting under it un-
til adjudged void by the Courts; and as the de-
fendant in this case believed in good faith that
fbeaA Ant ,1.avwr y. .sA1,l, aI,..
his salary was constitutional, and that he was
entitled to SIS per MONTH instead OF $50 per
month, the Act protects him against this prose
cution, though it does not give him title to the
increased salary. 1t is contended by the learned
counsel for the defense that the Act is constitu-
tional, and they found their argument upon that
clause of Section of Article XI. of the Consti-
tuition which declares that the Legislature
" shall regulate the compensation of all such
oticers Supervisory in proportion to duties and
for this puTp Sc may classify the counties by
population Supervisors Ross and Tebbets
were elected after the passage of the Act of 1855
AID were entitled under that Act to receive a
salary of S75 each. and as the duties performed
by the defendant were the same as the duties
performed by Ross and rebbets, it is contended
that the compensation should be the same
though he was elected prior to the pa sage of the
Act, and that the Legislature did not transcend
It's constitutional powers in enacting the law
Abstractly considered, there is equity and
justice IN the contention; but in view of
Section of the same article of the Constitution
which declares that the compensation of any
county officer shall not be increased after his
election or during his term of Office the con-
stltutlonality of the Act cannot be maintained
and the defendant was not entitled to more
than 500 per month as salary, and the S25 in eX-
cess of that amount, collected as salary, the de
fendant holds in trust for the county, which
may be recovered by the county in an action
against him for moneys had and received to the
use OF the county. If the money is not refunded
1t Is the duty of the Districe Attorney TO bring
such action.
Under the evidence in the case, if the defend
ant is guilty of the otfense of refusing or ne
glectlng 10 perform the official duties pertaining
TO his Office, in permitting Bates and Jackson
TO charge and collect SIS per month as their sal
equally guilty, because no action has been had
in the Board by any of its members to prevent
the collection of those salaries. But none of
them are guilty for the reasons already
given. The evidence fails to show any
corrupt motive. which is essential to
conviction in this class of cases
(6l B. Monroe, III; Leigh, 909; Is Wendall,
277; Douglas, i26; Tenn Reports, SIS; 2S
Upper Canada, Queens Bench 376; Cal kep.
564; so Cal. Rep. 644)
There must therefore be Judgment for the de-
fendant, but as there is no provision in the law
under which the prosecution is mad authorizing
the recovery of costs, and as costs ars not al
lowed at common law or under our Penal Code
to defendant in a criminal action, the judg
ment must be without costs.
1t is therefore ordered that Judgment be
entered for the defendant without costs
JOHN W. ARMSTRONG,
Judge OF the Superior Court.