Amador ledger., 1903-07-17
COURT DECISION
ON THE JUSTICES SALARY CASE

hO uONioiOh iOuuOIOu ny y uuS6 IeuS1
last Friday in the mandamus suit
brought by James McCauley, as justice
of the peace, against G. L. Culbert, as
county auditor, to compel the latter to
draw his warrant in favor of petitioner
for S35 as salary for criminal business
for one month, under the provisions of
the county government act passed by
the last legislature, is a lengthy docu-
ment, embracing twelve pages of type
written matter. We have no space to
give the full text of the decision in
the Ledger. We give, however, the
leading points made in granting the
writ. The suit was contested on con-
stitutional grounds; 1st, that the act in
question violated the provision prohib-
lting increase of salary of any state,
county or township officer during his
term of office. I'd, it is special legis
lation, in that it classifies the townships
according to population for the pur-
pose OF grading salaries of township
officers: The court says:
That the legislature has the power to
change during the term of office the
compensation of township officers from
fees to stated monthly stipend there
126 Cal. 35. Counsel in this proceeding
makes no contention against this rule.
In support of the issue of fact raised
by his answer that the salary provided
for by the legislative enactment under
consideration is an increase Of compen-
sation after election and during the
term of Office OF petitioner. respondent
offered in evidence the criminal re-
turns Of the justice of the peace of
township two, together with the bills
presented by such justice for fees for
criminal cases and charges allowed un-
der the statute prior to the amend
ment, and for the months from June,
1900, to and including February. 1908,
and in connection Herewith offered
the testimony of respondent as county
clerk and ex-officio clerk of the board
of supervisors thereof. These offers
were all objected to upon the ground
that they were irrelevant, immaterial
and incompetent.
In passing upon the constitutionality
OF statute the court must confine it.
self to the facts appearing upon the
lace OF the law, and the facts of which
1T can take judicial notice, and if the
law, as then considered, does not ap-
pear to be unconstitutional, the court
will not go behind it and receive evil
dence to establish facts which would
tend to impeach and overthrow the
law.
On the other hand section 1890 of
G. C.P., reads: ''If an answer be made
which raises question as to matter
OF fact essential to the determination of
the motion, and affecting the substan-
tial rights of the parties, and upon the
supposed truth of the allegation on
which the application for the writ is
based, the court may, in its discretion.
order the question to be tried by a jury,
and postpone the argument until such
trial can be had, and the verdict certi-
fed to the court"
Here we have an apparent conflict in
our law, but a close reading of the cases
cited in the rule in favor of petitioners
contention satisfies me there is no con-
fiict, but that these are cases where the
has clearly acted beyond it's
in amending claims in the
nature of gifts prohibited by the consti-
ton.
In the proceeding at bar the issue of
fact raised by the answer is deemed
controverted, and how can the court
arrive at solution of the issue without
hearing evidence. If could avail N.Y.
self of the objections of counsel, it
would be an easy way out of the dill
emma, for it would end the case, but
such objection, in my Judgment, can
not be sustained. The objections to
the evidence and offers of proof, so far
as they apply to the bills filed and al
lowances made to petitioner as said
justice of the peace for the term begin
ming on the first Monday in January,
1908, and extending to the date of the
of this proceeding, are
overruled. and the evidence is admit
ted. All evidence of these facts prior
to that time is Objectionable, and the
objection as to that is sustained.
1t is the plain duty of the court in
passing upon statute to endeavor to
give effect to the expressed will of the
and uphold the laws en-
acted by it, rather than search for
means of evading it. 1t is not for the
court to question the wisdom or eXped-
iency of the enactment; that is the
province of the legislature, and the
law presumes, that body in the first in
stance passing the act, and the chief
executive in giving it his sanction and
the force and effect of law by affixing
his signature, have fully performed
their duty, and given due considera-
tion to such questions and also to the
constitutionality of the act.
Courts are not to review or revise
the legislative action, but to enforce
the legislative WILL and it is only when
they find that the legislature has failed
to keep within its constitutional limits
that they are at liberty to disregard
it's action.
In regard to the second objection the
opinion, after referring to cases cited,
concludes: am therefore satisfied that
this act Is not subject to the objection,
for the act is clearly a regulation in
to duties of the compensa
tion of all township officers within all
counties OF this class, and the legisla-
ture was not prohibited by the consti-
tiOn from so enacting.
The final question for discussion then
will be, Is the act an increase of COM
pensation of the township officer after
his election and during his term of
office. The evidence introduced at the
hearing shows that the bills presented
by petitioner to the board of supervis-
ors for criminal fees during 1903 was,
SO. so for month of January, nothing for
month OF February, and no bill pre-
sented for March. So for period of
the first three months of his term of
Office petitioner only claimed as full
for all services in Grim
lnal cases the sum of $3.50. And coun-
sci for respondent contends that am
to average the next three years and
nine months of DetitiOner'S term of
Office from these first three months,