Brown v. Francisco

McMURRAY, J. pro tem.*

This is an appeal from a judgment denying appellants’ petition for a writ of mandate.

Appellants, the members of the Santa Clara County Board of Supervisors, sought the writ to compel respondent, controller and auditor of said county, to pay their salaries at the rate of $6,000 a year, as provided by Government Code, section 28106, as amended in 1951, rather than at the rate of $3,600 a year under county ordinances enacted by the board in accordance with section 207 of the Santa Clara County charter.

It is contended by appellants that the above section of the charter is unconstitutional and that the ordinances enacted thereunder are void. Based on this premise it is urged that they are entitled to the salaries provided in section 28106 of the Government Code inasmuch as sections 53070 and 53071 of that code suspend the prohibition against such increases found in article XI, section 5, of the Constitution.

Section 7% of article XI of the California Constitution provides for “home rule’’ by counties, and outlines the method whereby a county may frame and adopt a charter for its own government “consistent with and subject to the Constitution . . . and relating to matters authorized by provisions of the Constitution . . . ,” and contains the following:

“It shall be competent, in all charters, framed under the authority given by this section to provide, in addition to any other provisions allowable by this Constitution, and the "same shall provide, for the following matters:

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“1. For boards of supervisors and for . . . their compensation . . .

“2. For sheriffs, county clerks [etc.], . . . and for their compensation, or for the fixing of such compensation by boards of supervisors . . .

“3. For . . . justices of the peace and constables . . . , and for their compensation, or for the fixing of such compensation by boards of supervisors ...”

On November 7, 1950, the electorate of Santa Clara County voted for and ratified a charter which was approved by the Legislature on June 5, 1951, and became operative on September 4, 1951. Section 207 of that charter, so far as here pertinent, reads: “Salaries of Supervisors shall be based upon the time required for the proper performance of their public duties and shall be fixed by the terms of an ordinance passed by the Board. Such salaries shall not exceed the amount allowable by the applicable provisions of general law as of August, 1950. Subject to the same limitation, salaries may be revised or changed biennially to take effect before new supervisorial terms commence, but no such change shall affect the salary of an incumbent Supervisor during the continuance of his current term of office. ...” Two ordinances were enacted by the board, one on September 4, 1951, and one on May 15, 1952, each fixing the members’ salaries at $3,600 a year (the amount fixed by Gov. Code, § 28106, in effect in August, 1950; the provision of general law referred to in the charter).