The record-union., 1892-05-07
EXTRA DEPUTIES TO Go.
The County VIII Probably Cease
Compensating Them.
The Board of Supervisors Gets Some
Legal Advice on the Subject
History of the Matter.


Inc lie OF the extra deputy at the
Courthouse is one of uncertainty and
anxiety.
gin January last the Supreme Court
rendered decision in the case of Deputy
County Clerk Dougherty of Marin
county against Treasurer Austin of that
county, IN which the court declared that
section ZIG Of the Statutes of 1891 (amend-
ing the County Government Act so as to
authorize the various county Boards of
supervisors TO permit County Clerks and
oCher county officers to employ addi-
tlonaI deputies to the number allowed by
law, was unconstitutional and void.
Dougherty was one of these extra depu-
Ties, but Treasurer Austin refused to pay
nm his salary, on the ground that virtu-
ally he would be compelled to pay
Bonneau an increase Of compensation in
violation of the State Constitution. And
the Supreme Court decided that Austin
was right.
SACRAMENTO DEPUTIES.
Sacramento was affected indirectly by
this decision. The situation of the local
extra deputies was quite similar to that
'appolnted under the sanction of the
Board Of Supervisors and were drawing
pay from the county, and not from the
allowances of the various county officers
1or whom they worked. Although they
had not been refused their salaries, their
cases were before the Supreme Court for
disposal. +. A. Burr brought an injunc-
ton suit to prevent the extra deputies
here from drawing their salaries, but the
case was decided against him IN the Su-
perior Court. He then took the case to
the Supreme Court, where 1t now awaits
decision.
AT the time this decision was rendered
there was CONSERVATION among the extra
deputies, for they realized that their cases
would rest on the same points. But their
attorneys gave them hope, saying that
there were other points to be submitted,
on which the Supreme Court might grant
rehearing. The only way to get at the
case was to
STRIVE FOR A REHEARING
OF the Marin County case, as the Sacra-
mento case had not been decided yet, and
II nothing was done it would be decided
summarily-the Supreme Court would
simply refer the litigants for authority to
the Marin County case. The clerks and
their attorneys got together and assisted
the Marin County deputy all they could.
the result being that the Supreme Court
granted rehearlng of that case, and the
matter is still pending.
But now comes more trouble and trib-
ulation for the poor deputies-that is the
Sacramento deputies.
The Board of Supervisors, not content
with waiting for the Supreme Court, and
tearing that it might be held responsible
Tor the salaries Of the extras should the
decision 90 against them, decided to have
some legal advice. Robert r. Devlln,
who is acknowledged to be one of the
hos oil ~. r
the State, was called in and asked for an
opinion. Mr.. Devlin went into the sub
yect eXhaustively, and has completed
lengthy written opinion, and will pre-
sent it to the Supervisors at a special ses-
sion to be held on Wednesday next.
ILLEGALLY COMPENSATED.
Mr.. Devlin holds that the deputies are
not legally employed. In his opinion he
refers to the decision of the Supreme
Court above referred to, and says that in
that case five of the Supreme Justices
concurred in the opinion and two dis
sented. The court granted a rehearing,
and while he admits that this technically
reopens the case, yet the reasoning and
opinion of the five Justices remain: and
1t Is extremity improbable, he says, that
there can be such radical change of
opinion as to warrant the belief that any
other conclusion than that pronounced by
the court can be reached.
Mr.. Devlin says that a county officer can
appoint as many deputies as he pleases,
regardless of the demands OF the Board of
Supervisors; and, if necessary, for the
performance of the duties of the office.
he should do so. His salary, however,
cannot be increased for the term for
which he was elected, and, as provided in
Section 2l6 of the County Government
Act of 1891 and Section 2l1 of a sim
liar Act of 1887: 1.-THE salaries and
fees provided in this Act shall
be in full compensation for all services
of every kind and description rendered
by the officers therein named, either as
officers, ex of1icio officers, their depu-
ties and assistants. unless in this Act
Otherwise provided"
MUST PAY THEM HIMSELF.
The circumstance that the law under
which the Board of Supervisors acted
was in force prior to the election of the
officers is lmmaterial, says the attorney.
His deputies must be paid by himself.
The provisions of the statute that the
board may appoint when an affidavit is
made that additional deputies are needed
is unconstitutional. He has contracted
ito do all of the work of the office for
gross sum and himself pay all the depu-
ties. If the Board of Supervisors can au-
thorlZe the payment of one deputy, it
can authorize the payment of them all,
and thus increase the salary Of the officer
To such amount as may be desired. The
Legislature has no power to increase the
compensation OF an officer, and has no
power to authorize your board to do so.
The Supreme Court says: ''To con-
strue the provision of the Constitution so
that a County Clerks salary could not be
increased during his term of office, but
that an Act of the Legislature would be
valid which provided that all of his
deputies, men whom he was bound to
TO employ and bound to pay, in the abb
sence of such an Act, should be paid by
the county independent of and in addi-
tion to the Clerks salary, would be to al
low that to be done Indirectly which could
not be done directly, and would be estab-
fishing medium for the practice of the
very abuses which the constitutional
provision was inserted to destroy. The
provision of the statute appears to be
crude and ill-conceived effort TO evade
very plain and very wholesome provision
OF the Constitution of this State.'
VIRTUALLY TWO SALARIES.
The payment of the salary of deputy
is to that extent the payment OF the salary
of the principal.
1t follows that whatever has been paid
for salaries of deputies has been an over
payment of salaries to the-otilcers them
selves. For instance, if an officers salary
IS 5000 per annum, and the Auditor has
given him warrants for 5000, and has
also drawn warrants for j., 400 for two
deputies, the Auditor has overpald-not
the deputies, bur the offfcer-the sum of
s., 400. The Auditor is fully protected in
all warrants ordered drawn by your
board on claims against the county. Con-
cerning claims allowed by your board he
is simply a ministerial officer and in
10 sense responsible for any warrant
that may be drawn. But the law
makes him a cashier in the matter of
county salaries. He pays them every
month. No matter what you may order,
Won have no power to order him ~ nav