The record-union., 1891-01-22
SUPREME COURT DECISIONS.

lFiled January 4, 1911
Appeal from Superior Court, Contra Costa
Connty-Joseph P. Jones, Judge.
For appellant. W. S. Timing.
For respondent, Chase, Chase & Miller.
IN BANK.
w. A. KIRKwooD, Respondent
VS.. NO. 1884.
A. j. SoTo, Appellant.
The respondent was elected Superintendent
OF Schools for Contra Costa County at the
general election held in 1856. His term was
four years commencing on the first Monday
OF January following. In due time Ec quail
fieo aud entered upon the discharge OF his
duties, and has ever since continued to hold
the office.
At the time of his election, Contra Costa
was county of the seventeenth class, and the
County Government Act contained the fol-
lowing provision IL regard to his salary:
section 179. In counties of the seven
teenth class, the county officers shall receive
as compensation for the services required of
them by law, or by virtue of their Office, the
following salaries, TO wit:
III. The Superintendent of Schools,
1900 per annum.'' Stats. 1855, p. 176.)
In March, 1889, Section 552 of thepolitieal
Code was amended SO rs to read as follows:
'Sec. 1852. Each County superintendent
shall receive his actual and necessary travel
ing expenses said expenses to be allowed by
the Board of Supervisors and TO be paid ont
of the county general fund; provided, that
this amount shall not exceed ten dollars per
district per annum. He shall also he allowed
postage and eXpressase, payable out of the
county school fund, two dollars for each
ScilOOi ulStric1; PROVIDED, tnaI IN Incorporated
cities each school containing three hundred
pupils shall be considered equal TO one school
district
After this amended section took effect the
respondent incurred, in the performance of
his official duties as School Superintendent in
visiting schools in his county, actual and he
cessary travelling expenses to the amount of
$40 20. For tnis amount he presented a
claim 10 the Beard of Supervisors, properly
itemiZed and verified, for allowance. The
claim was examined and allowed by the board
ana n warrant ordered drawn the
County Treasurer therefor. The appellant
was County Auditor at the time, and as such
refused to draw the warrant ordered, and
thereupon this proceeding was commenced to
compel him TO do SO.
After a hearing the court below granted the
prayer of the petition and ordered a.
peremptory writ of mandate to ISSUE
commanding the appellant to forthwith
draw his warrant in favor of the
petitioner upon the County Treasurer for the
amount allowed and ordered paid by the
Board of Supervisors. From that order or
Judgment this appeal is prosecuted.
The only contention of appellant is that Sec
tlon ,oo2, supra, IS lnapplicable and unconSt-
tutional, so far as the respondent is concerned
1t having been passed after he was elected to
office, because, in authorizing the payment of
his necessary travelling expenses, it in effect in
creases the compensation or salary allowed
him at the time OF his election.
The clause OF the Constitution relied upon
reads as follows: '.The compensation of any
county, city, town or municipal officer shall
not be increased after his election or during
his term of office" (Art XI. Sec. 81
The words compensation" and salary
were evidently used anonymously in the
Constitution and in the County Government
Act. Thus in Art. ", Sec -. of the Constitu-
tion it is provided: 1.-THE Governor. Lieuten-
ant-Governor, Secretary of State, Controller,
Treasurer, Acknowledgement and Surveyor
General shall, at stated times during their
continuance in Office, receive for their services
compensation which shall not be increased
or diminished during the term for which they
shall have been elected,' etc. In Article TX ,
Section 2, it is provided: "a Superintendent
OF Public Instruction shall. at each guber-
material election after the adoption of this
Constitution, be elected by the qualified electors
OF the Stale He shall receive a salary equal
to that OF the Secretary of State,' etc. And in
Article VI. Section Il, this language is used:
The Justices ofthe Supreme Court and Judges
of the Superior Court shall severally at
stated times during their continuance in
ofhce, receive for their services acompeasation
which shall not be increased or diminished
after their election, nor during the term for
which they shall have been elected. The sal
aries of the Justices of the Supreme Court
snail be paid by the State. One-haf of the sal
ary OF each superior Court Judge shall be
paid by the State; the other half thereof shall
be paid py the county for which ne is elected.
During the term of the first Judges elected un-
der this Constitution, the annual salaries of
the Justices of the Supreme Court shall be six
thousand dollars each.' In the County Gov
ernment Act the same language is used at the
commencement of each section, which fixes
the compensation of county officers. 1t Isl:
Tine county officers shall receive as com npersa-
tion for the services required of them by law
or by virtue of their Office. the following sala-
ries."
Since the adoption of the, present Constitu-
ton many Acts have been passed by the
Legislature, after the commencement of terms
OF Office providing for the payment of neces-
sary expenses incident to the offices. Among
them the following may be noted:
The Justices of the Supreme Court and the
Judges of the Superior Court, who We're first
elected under the Constitution, entered upon
the discharge of their duties as such on the
first Monday of January, 1880 In April fol-
lowing. Act passed to amend Part T n
the Code of Civil Procedure and substituting
new Part l., to take the place thereof. (See
Am. to Codes, 1880, p. 2l.) By Section AZ of
this Act it was provided that the Supreme
Court shall hold regular sessions at the Capital
of the State, at the city and county of san
Francisco and at the city of Los Angeles: and
that THE Justices and officers of the Supreme
Court shall be allowed their actual travelling
expenses i'll going to and from their respective
court, or to attend its session." BY Section
Il il is provided that Judge of any Super
ior Court may hold the Superior Court
in any county. at the request of the Judge
of that county, land, upon the request
of the Governor, it shall be his duty to do so'
And by Section 100 it is provided that "A
Judge so holding court. at the request of the
Governor, shall be allowed his actual expenses
in going TO, returning from and attending
upon the business of such court which shall
be a charge against the treasury OF the county
where such court is held and paid out OF the
general fund thereof"
The constitutionalty of these provisions
has never been questioned. SO far as we are aCl-
vIsed, in any court or elsewhere, and yet #
the theory of the appellant be true. they would
seem to have been subject to the same OBJ
jections raised here, during the terms of the
Justices and Judges who were in Office at the
time the Act was passed.
The question now presented for decision
does not appear TO have been ever passed
upon by the Supreme Court of this State. but
similar question before the Supreme
Court of Illinois in Briscoe vs. Clark County
(95 III. 3o9)
The Constitution of that State provid-
ed that the County Board should fix
the compensation of all county officers
with the amount of their necessary expenses
provided that the compensation of no officer
shall be increased or diminished during his
term of office" The Supreme Court held that
II was the salary of the county oficer-thc
compensation for the personal discharge of
otnclal duty-which the board was forbidden
TO change. The compensation or salary was
TO be fixed in advance, but the expenses were