Seidel v. Waring

GIBSON, C. J.

This is a companion case to

Woodcock

v.

Dick, ante,

p. 146 [222 P.2d 667], and that decision is determinative of most of the contentions made herein. This proceeding, however, also raises the additional question whether the Legislature has power to increase the salary of an incumbent county superintendent of schools when the

[150]

county charter, adopted pursuant to section 7% of article XI of the Constitution, prohibits such an increase during an incumbent’s term of office.

Petitioner was elected superintendent of schools for Alameda County, a charter county of the third class, for the term commencing January 6, 1947, and ending January 8, 1951. In 1947 the Legislature adopted sections 400 to 459 of the Education Code, relating to the salaries of county superintendents, and provided by section 400.2 that the specified salaries were payable to incumbents. In 1949, section 403, relating to petitioner’s, salary, was amended to provide for an increase which was payable to the incumbent under section 400.2. Respondent auditor has refused to pay the salary specified in the 1949 amendment, and petitioner seeks a writ of mandate to compel such payment.

Section 5 of article XI of the Constitution, involved in the Woodcock case, prohibits any increase in the compensation of a county officer during his term of office, but it also states that its provisions shall not be construed to abridge, modify or otherwise affect the provisions of section

7x/2

of that article. Section 7%, as amended in 1914, states that county charters may provide for various officers, such as superintendents of schools, and for the fixing of their compensation. Pursuant to this section the Alameda County Charter provides that the county school superintendent shall be elected (§15) and that the compensation of elective officers shall be fixed at least six months prior to election and shall not he increased or diminished during the term of office (§ 12b). In 1946 there was added to the Constitution section 3.1 of article IX which provides that “Notwithstanding any provision of this Constitution to the contrary, the Legislature shall prescribe the qualifications required of county superintendents of schools and shall fix their salaries. ...”