Reed v. Hammond
Before: Shaw
Synopsis
County Officers—Tenure of Office and Qualifications—Power of Legislature.—The legislature, subject to the provisions of the constitution, may create county offices, prescribe the tenure thereof, and determine the qualifications required to render one eligible to election or appointment to such office. In addition to the usual • county officers, the legislature has provided generally in section 55 of the County Government Act, as codified in section 4013 of the Political Code, that they include “such other officers as may be provided by law.”
Ib.—Assistant Probation Officer under Juvenile Court Law a County Officer.—The office of an assistant probation officer, appointed by the superior court of the county, under the juvenile court law, is a county officer, whose tenure and salary is fixed by the law, and made chargeable upon and payable out of the county treasury, and whose qualifications and eligibility for appointment are determined by the general law of the state when not fixed by the constitution.
Id.—Noneligibility of Women for Appointment Prior to Amendment of Constitution.—Prior to the amendment of the constitution bestowing the elective franchise upon women, a woman was not eligible to appointment as an assistant probation officer under the juvenile court law, since it has been the uniform policy of the general law, prior to that amendment, that no person is eligible to office who is not an elector, “except when otherwise specially provided,” there being no provision in the juvenile court law providing for the appointment of a woman to the county office of assistant probation officer, it apparently being a matter of oversight, since women have, by special laws, been made eligible to certain other offices.
Id.—Construction of Law as to Eligibility to County Office—■ “Time of Election”—Appointment Included.—The construction of the law regulating eligibility to a county office, that the officer “must, at the time of his election, be an elector of the county wherein the duties of his office are to be exercised,”' is to be construed as relating generally to the time of his legal choice to fill the county office, whether the statute provides for an election by the people or for a legal appointment thereto, and the same rule of eligibility applies in either case.
Id.—Ineligible Appointment op Woman—Error in Writ op Mandate to Auditor—Reversal—Desirability op Woman Assistant —Future Ineligibility Removed.—Since the appointment of a woman as assistant probation officer, in this case, was unauthorized by law, notwithstanding the admitted desirability of the services of a woman as assistant probation officer, and though the difficulty in the statute is now removed by the constitutional amendment making women eligible as electors, yet, as the superior court erred in granting a peremptory writ of mandate to the auditor to pay an unauthorized salary, its judgment must be reversed.
SHAW, J.
This is an appeal from an order of court pursuant to which a peremptory writ of mandate was issued commanding defendant, who was auditor of San Diego county, to issue to Lillie A. Reed, the wife of petitioner, his warrant upon the county treasurer in the sum of $120, claimed as salary for the month of May, 1911, as assistant probation officer of San Diego county, to which office, on May 1, 1911, she had been appointed pursuant to the provisions of the juvenile court act, approved April 5, 1911.
The sole question involved is whether, prior to the constitutional amendment extending the elective franchise, women were eligible to appointment to the office of such assistant probation officer.
It is unnecessary to cite authority in support of the proposition that the legislature, subject to the provisions of the constitution, may create county offices, prescribe the tenure thereof, fix the salary and determine the qualifications required to render one eligible to election or appointment to such office. Section 55 of the County Government Act (Cal. Gen. Laws [1909], p. 137), as codified in section 4013, Political Code, provides that the officers of a county are the sheriff, auditor, etc., “and such other officers as may be provided
[444]
by law.” The office of assistant probation officer of San Diego county was one created by the legislature in and for all counties of the seventh class, to which San Diego belongs. The act specified the tenure of office, fixed the salary of the incumbent, and made it chargeable upon and payable out of the county treasury. Clearly, it was a county office; indeed, respondent, upon the authority of
Nicholl
v.
Koster,
157 Cal. 416, [108 Pac. 302], concedes it so to be. Section 58, Political Code, as enacted in 1872, provided that “every elector is eligible to the office for which he is an elector, except where otherwise specially provided; and no person is eligible who is not such an elector. ’ ’ In 1891 this section was amended by adding thereto the words, “except when otherwise specially provided.” It is apparent that this amendment was by the legislature deemed necessary in order to render effective an amendment, adopted at the same time, to section 792 of the Political Code, whereby women were made eligible to appointment as notaries public. (Stats. 1891, p. 29.) Section 54 of the County Government Act (Cal. Gen. Laws [1909], p. 137), as codified in section 4023 of the Political Code, so far as it concerns the question here involved, was enacted on the same day in 1872 as said section 58 of the Political Code. As originally enacted, it was as follows: “No person is eligible to a county office who, at the time of his election, is not of the age of twenty-one years, a citizen of the state, and an elector of the county in which the duties of the office are to be exercised.” While it has been amended from time to time, no change has been made in the requirement that in order to render one eligible to a county office, other than superintendent of schools, school trustee, or member of the board of education, to which a woman may be elected or appointed, he must, at the time of his election, be an elector of the county wherein the duties of the office are to be exercised. In 1907 it was repealed and re-enacted [Stats. 1907, p. 354] as a part of the County Government Act, consisting of two hundred and thirty-four sections.
More from California Court of Appeal
- People v. Hill (1998)
- In Re Autumn H. (1994)
- Nwosu v. Uba (2004)
- In Re Casey D. (1999)
- Santisas v. Goodin (1998)
- Cahill v. San Diego Gas & Electric Co. (2011)
- People v. Rivera (2015)
- People v. Barnett (1998)
- People v. Serrano (2012)
- Benach v. County of Los Angeles (2007)