The herald. [microfilm reel] (Los Angeles [Calif.]) 1893-1900, 1895-04-19
Deputies Under the Test Case
Get Their Salaries
JUDGE Works. OPINION FILED
The County Government Act Is Not
Unconstitutional
While No Express Authority Is Needed to
Employ Clerks, Yet 1t Is Clearly Inn
piled In the Act

three of the superior court yesterday
afternoon delivered the opinion which
has been awaited with SO much anxiety
by number of deputies and clerks at the
court house who have been looking long
ingly to the county treasurer's strong box
and singing in doleful tones: Thou Art
So Near and Yet So Far.
1t was the case of G. G. Cook, deputy
county recorder, against T. j. Fleming,
county treasurer, praying the court for
the issuance of mandamus to compel the
treasurer to pay Mr.. Cooks salary, which
was refused under circumstances which
have been fully reported in the Herald
heretofore. The suit was to be test case
and the courts action in Cooks particu-
lar case would apply to all the others who
were in the same fix. Judge Yolk's
opinion is as follows:
The defendants demurrer in this cas- e
will be oveiruled. The reasons alleged in
support of defendants demurrer are, first,
that Los Angeles county is the only coun-
ty in the state of the second class, and
hence that the provisions of the county
government bill relating to the appoint
ment of deputies and their compensation
in counties of the second class is special
legislation and. second, that the legisla-
ture cannot delegate to the supervisors
the fixing of salaries of such deputies.
The act places all counties between 100,-
900 and 200, 600 population in the second
class, and Los Angeles is the only county
having population between 100, 900 and
200, 600, according to the last census.
l hold the provisions of the act in ques-
ton are not special in character, that
they are in accordance with the mandates
Of the constitution itself, and hence are
not unconstitutional. The classification is
obviously not arbitrary nor unreasonable,
but q proper exercise OF legislative power
under the constitutional provision for the
classification of the counties of the state
according to their population for the pur-
pose of fixing The compensation of county
officers. In fact. it was conceded on the
argument that Cody VS.. Murphy, 80 CAL,
525 settles this point.
AS to the second proposition. I should
be in some doubt were it not for the
case of Farnham VS.. Warner, California
Decisions, No. 557, decided Decembe 4.
1894. In that case. involving section 1872
of the county government act, providing
that the county auditor in counties of the
twentieth class should receive $500 per
annum salary and have one clerk at
monthly salary of not exceeding $50, the
supreme court holds that the auditor had
authority to employ clerk and fix his
salary at the sum OF $50 per month; that
that provision was not Objectionable on
any constitutional ground. 1t is further
held in that case that the auditor needed
no express authority to employ clerk
ana if such authority had been requisite
it was clearly implied in section 81 of the
county government act of 1891, page 314,
which authorized the auditor to appoint
deputies. In that case the court sand:
1.-THE evident reason why the legislature
did not fix the salary of the auditor at
specified lump sum out of which he must
pay his clerk or deputy, was that it could
not be foreseen whether or not the audi
tor would appoint a clerk or deputy, nor
whether he would pay salary of $50 or
less. Such a regulation of the
compensation of county officer is com
plete obedience to the behest of the con-
stitution in this respect, nor has it been
otherwise decided by this court. -
The case of Farnham VS.. Warner, supra.
is to be distinguished from the leading
case of Dougherty VS.. Austin, in that in
the latter case the officer was to receive u
salary as lump sum and was only to
have deputy in case the duties of his
Office were such that he could not perform
them for the salary fixed, in which case
by filing an affidavit to. that effect he
could be allowed deputy at not exceed
ing $50 per month, to be paid for by the
county. The supreme court held that
the allowing of such deputy at the ex-
psnse of the county was an increase of
the compensation of the officer during his
term of Office, and that the same was for
that reason unconstitutional.
No such question appears in this case.
If, as decided i'll the case of Farnham vs.
Warner, the county auditor could himself
appoint clerk and fix his salary within
a certain limit. the legislature could with
greater reason delegate that power to the
board of supervisors the legislative body
of the county. 1t is very clear that the
legislature did not intend the salary of
the county recorder. as fixed in the
county government act. as lump sum
out of which he should pay his deputies
clerks and assistants, for it appears that
it requires to do the work of the Office
= force Of about thirty persons. and even
with that force, at the rates of compensa-
tion fixed by the board of supervisors,
there is large net profit to the county in
tine fees received from the recorder
office over the expense of conducting the
same.
Inasmuch as the defendant has an
nounced on the argument of the demurrer
that he would submit the case upon the
demurrer, Judgment is ordered for the
plaintiff for peremptory writ of man
date requiring the defendant to pay his
warrant of $75, for his salary as deputy
county recorder for the month of March,
1895.
A five days stay of execution was
granted at the request of Assistant Dis
trict Attorney Williams, and it is possible
that an appeal may be taken to the SUI
coIrt