The herald., 1895-09-12
WILL GET THEIR Salaries
The Lopez-BickneIl Case Decided
! by Judge Shaw
NOVEL POINTS INVOLVED
No Precise Term of Office Fixed by
the Law
The Term "Year" as Defined in the Polite al
Gode-Al the Points at Issue
Fully Covered


they served before turning over their
offices to their successors. In the test
case OF Lopez VS.. Bicknell. decided by
Judge Lucien Shaw yesterday, while the
demurrer is sustained, the decision is
in favor of the officers. As this is the
frst time that the question has been
raised, at least in this end of the state
and because of the points raised. the main
points OF the opinion OF Judge Shaw are
given, as follows:
This is an application for a writ of
mandate to compel the defendant, as
auditor of Los Angeles county. to issue to
the plaintiff u warrant on the county
treasurer for $685.. As, which it is alleged is
due the plaintiff on his own account and
as assignee of several other county Off
GERS, for the salaries accrued for the first
six and one-half days of the month Of
January. 1895. The case depends on the
proposition that this portion of the sal
aries has not been paid, and the determi-
nation of that fact is The question for
solution. The facts affecting each officer
are the same. and consideration of the
case of the plaintiff who was the county
auditor, will settle the question as to the
others.
The plaintiff was elected at the gem
eTai election III 1899 fer the statutory
term beginning at noon on January .,
1893 and he continued in Office from that
ulmt uUbll lu6 teru Vi HIS SuNCtsSOT De-
gan, which was at noon on January Z,
1895, period by the calendar of two
years and five days. For this period he
has been paid the sum of $1,000, and no
more.
His right to the amount claimed is to
be determined by the law that was IN
force at the time he was elected, the
county government act OF 1891 which
was in force during November 1899.
The constitution provides that the
legislature, by general and uniform laws.
shall provide for the election or appoint
ment of the county officers in the several
counties, and shall prescribe their du-
ties and terms OF Office Cart. Nj sec. 81.
And in section Is of article Xxx it IS pro-
vided that when the term of any officer
may be declared by law but IN no case
shall such term exceed four years.
1T will be seen from the above extracts
that no precise term of an exact number
of years is fixed by the county govern
ment act. If this section were
now in force it would settle the case.
But | am convinced that section 4109 of
the political code is repealed by the
county government act. Section 400 is
contained in title III of part " of the
as expressed in the title heading is The
Government of Counties, and the pIovis-
IONS of the entire title follow closely
taose OF the county government act or
1891.
The rule on this subject is that even
if two statutes relating to the same sub
ject be not in terms rapugnant or in con-
sistent. if the later statute was clearly
intended to prescribe the only rule which
shonld govern the case provided for, 1t
will be construed as repeating the origi-
nal act
Whenever it clearly appears that the
intention OF the Legislature by the later
act is to revise the entire subject matter
81. 81
operates as a repeal of the former. al
though 1t contains no precise, words to
that effect
at would be difficult to find a case more
com pletelv covered by these principles
than is this one of the two county gov.
eminent acts, the former one emil raced
in title .. part OF the political code and
the later one in the statutes OF 1891. They
are both upon the same general subject.
And section 4l09 of the political code
and section 60 of the act of 1889. are upon
the same particular branch of the general
subject. The latter act is the only one
that can now be considered of any force.
and therefore section 4109 can not affect
the decision of this case.
BY the county government act of 1891
the end OF the term of any officer is fixed
by an event uncertain as to the time of
its occurrence, namely, the election, or
appointment, and qualification of his
successor. This event may or may not
happen the first Monday after the 1st day
OF January succeeding his election. II
the officer elect failed to qualify within
the time required by law, and no one Was
appointed to succeed him, the term of
the incumbent would. bv the strict terms
of section go, continue indefinitely until
successor was appointed. or at least
until the limit of four years was reached
fixed by the constitution. The period
between the first Monday after the LIST
day OF January of any one year and the
first Monday after the LIST day of the Sec
ond following January can never be ex-
actly two years. 1t will always be little
more or little less. The term of office
of county officer under the act of 1891
Is therefore not an exact term of two
years as it is generally understood to be,
but is u variable term beginning on a
fixed day and ending when a successor is
erected or appointed and qualified, a
period which in this case was five days
in excess of two years, and which in any
case might possibly be much longer.
But the compensation is fixed at certain
sum for each year. From this it Is fairly
to be inferred that the legislature did not
intend that the com pensation of the audi
tor should be limited to two full years
salary at $4,000 year, or in other words,
to $1,000 for the entire term, whether it
tasted more or less than two exact years
but that, on the contrary, the compen sa-
ton was intended to be computed at $4,000
for each year of the term and a proper
tlOnal sum at Unat rate LOT any year or
fractional part of year of the term in
excess of two years. The language used
is per annum." There is nothing in the
act which requires that this should be CON
strued to mean either more or less than
one year.
ut is also provided by sections 161 and
221 that this sal larry shall be paid month
ly, b. paying on the first Monday OF each
month the am cunt due for the preceding
month. And in clause OF section 221
not quoted above, relating exclusively
to the assessor, it it's declared that the
payments to him shall be Sin equal
monthly installments. - Although it is
not expressly so provided in the case of
the other officers. | think by the entire
section 1t is intended that the monthly
payments shall be equal parts of year s
salary in each case.
From these considerations l conclude
that the auditor is entitled to pay for
the additional five days of his term at the
rate OF 1880 a year, or $500 month,
which makes $50 for the five days.
The plaintiff claims that he has been
paid by the nUnth; this necessarily
means calendar month. and that there
fore he has been paid only up TO Deem
her 81, 1894, and that consequently he is
entitled to pay for the balance OF the
term. which il SIX and one-haf days.
But it appears from the complaint that
he has been paid $500 on the first Monday
OF each month during the term. AS his
term began on January 9, 1898, it follows