The herald., 1895-05-14
The Test Case Before Justice
Owens Today
OFFICIALS PROSPECT GOOD
His Honor Reasoning Much in Their
Favor
His Opinion in OverruIing the Demurrer
That Reviews the Case Very Fully.
An Interesting Opinion

claim due them is matter that is being
argued in City Justice NJ. T. Owens
court. 1t involves matter OF $500 to
$4,000.
On February 18th f. f. Hewitt, ex.tax
collector of Los Angeles county, filed
complaint suing the county for payment
for the six and one-half days in January
that he held office before his successor
took charge. He states tnat that was work
to be paid for at his regular salary. and
on January 7th he filed his claim with
the board OF supervisors; it was promptly
disallowed. So, after much meeting and
consultation among those in the same
plight, it was agreed upon rs test case
and the com plaint was filed he suing the
county for his claim of $751; 10. with ex-
District Attorney Henry G. Dillon as his
counsel. The county is repres ented by
District Attorney John A. Donnell and
Deputy Judge Holton.
The county filed general de emurrer to
the com mplaint and Judge Owens in over
ruling it. wrote his opinion, as follows:
In city Justices court. of Los Angeles
city, county of Los Angeles, state of Cali
forna. w. T. Owens, city justice.
Il. Il. Hewitt, p aintiff. VS.. Los An
geles county defendant. Opinion.
Plaintiff in his complaint alleges: That
on the Sth day of November. 1888 he was
elected tax collector of this county. That
he duly qualified, and at ~ o'clock, meri-
dian, on the second day of January, 1895.
he entered upon the discharge of his
duties as such collector.
That he continued to occupy said office
and discharge all of his duties until II
o'clock, midnight. on the 9TH day of jan
uary, 1898, when he surrendered the
office to his Gully elected and qualified
successor
That his salary as provided by law was
fixed at $4,000 per annum. payable month
ly. out of the salary fund upon warrants
Of the county auditor.
That he has received all OF his said sal.
ary down to and including the 3ist day
of Dece nber, 1894, but for his services
rendered to the defendant county for the
first six and one-half DAYS in January.
1895. the defendant has failed to pay and
still refusues to pay the same, which
amounts to $64. 10, for which amount he
brings action.
lie also alleges that he filed his claim
in writing for said amount. duly item
lied. with the clerk Of the board of su-
pervIsors; that it was disallowed by the
board; that he made a demand upon the
county auditor for a warrant for said
amount of salary, which was refused.
and that there was and still is money in
the treasury of the county to the credit of
the salary fund sufficient to pay his said
claim.
To this complaint the defendant filed
general demurrer.
The plaintiff was elected under the pro
visions of the county government act of
1881. section 60 of which act provides that
he should take office at II o CLOCK. merd
ian. on the first Monday after the first
day of January next succeeding his elec.
ton and also that all officers elected
under the provisions of this act shall hold
otfic, until their successors are elected or
apIOinted and qualified.
While said act provides that tax col
iector shall be elected every two years.
yet it will be observed that it does not
provide that the term of office shall be for
two years, but until his successor is electt
ed or appointed and qualified, and i.
would be his duty To discharge the func-
tions of his office until his successor was
elected or appointed and qualified. as was
county this year; and if that period was
for SIX days or six months. it seems to
me he would be entitled to his salary for
such time.
The salary provided for the tax collector
is S36O0 per annum. payable monthly.
Per annum and per year are, IN busi-
ness, Synonymous terms.
Political code, section 327, reads as fol-
lows: The term year means period OF
$50 days
1t appears that the plaintiff discharged
the duties of his Off during the whole
of the year 1893 and the whole of the
year 1894. 70, all of which he was paid
1920; and six and one-half days of tho
year 1898, for which he was not paid and
brings suit. section 22l of the county
government act of 1891, and the same
tion of the county government act Of 1893,
read as follows:
''The salaries of such officers named in
this act as are entitled to salaries shall be
paid monthly out OF tho county treasury.
and it shall be the duty OF the auditor,
tirS nf pnpI
month, to draw his warrant on the county
treasurer in favor of each of said officers
for the amount of salary due him under
the provisions of this act for the preced
ing MONTH
The difficulty in this case seems to
arise out of the construction of the words
preceding month as used in said
statutes. Council for plaintiff contends
that it means the preceding calendar
month. while the district attorney con-
tends that it means 4 new part OF q salary
month commencing upon the first Mon
day of one month and ending at midnight
of the Sunday preceding the first Mon
day of the following month. If the latter
construction is corr ct, some months
would have four weeks and others five
weeks each; so that an officer who
worked one week in u four-week month
would be entitled to one-fourth of a
months salary, if he was entitled to any
thing: but if he did the same work in a
uFc-Week IIlOHtl, lueIl Ht WOulu DB cll-
titled to one-fifth of months salary.
The district attorney seems to arrive at
his construction from the fact that the
county officers begin their duties at II
O'Clock meridian on the first Monday after
the first day of January after their cleo
tion. and also because the auditor is
directed to draw his warrants on the first
Monday of each and every month for sal
aries due for the previous month"
The officials of this state and the offic-
ials of this city take Office at the same
TINE as the county officials-at noon of
the first Monday after the first day of
January--yet | never have heard of any
such construction being put upon the
payment OF their salaries.
OF course no one will doubt the power
and wisdom OF the legislature of the state
to create All entirely new style of month
for us, and n new calendar if necessary;
but am not able to comprehend that
thev have done so ill this instance We
are not inevitably driven to any such con-
clusion.
When words admit of two different con-
structions. that which accords with good
business sense is. in my judgment, the
better construction.
1t seems to me that the words 'preced-
ing month"; can more reasonably be con-
strued to mean the eBpreceding1c
month than the preceding peculiar salary
month as contended for by the defendant.
The point in this controversy is that the
nlniutiff claims that it, WAS for Servi