Harrison v. Horton

California Court of Appeal Apr 18, 1907 No. Civ. No. 349.Published

Before: Cooper

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Holding. The court held that the salary of a public officer, whose position and compensation are fixed by law, must be paid from the general fund regardless of whether the board of supervisors made a specific appropriation for that particular salary.

Issues

Whether the salary of an assistant district attorney is payable when the board of supervisors has not made a specific appropriation for that position.
Whether an assistant district attorney appointed under a city ordinance authorized by the charter is a public officer whose salary is exempt from specific appropriation requirements.

Disposition. reversed

Quotations verified verbatim against the opinion

“The principle upon which all the above cases were decided is that the restrictions which the organic act imposes upon the setting aside of funds and payment of money out of the treasury do not apply to the payment of demands arising out of liabilities which are placed by law beyond the control of the board of supervisors.”

“Such salaries are fixed by law and must be paid.”

“The charter does not contemplate that the machinery of the district attorney’s office shall be stopped by reason of the errors or willful neglect of the board of supervisors—an independent branch of the city government.”

Synopsis

San Francisco Charter—Assistant District Attorney—Ordinance Providing Additional Assistant—-Salary—Mandamus.—An ordinance of the city and county of San Francisco, duly passed, providing for the appointment of an additional assistant district attorney to those authorized by the charter, makes him a legal assistant or deputy district attorney, and the appointment is of the same dignity as if the ordinance had been embodied in the charter; and mandamus will lie to compel the auditor to draw a warrant for his salary payable out of the general fund, as fixed in the ordinance.

Id.—Construction of Charter—Specific Appropriation—Salary of Officer.—The provision of the San Francisco charter forbidding the auditor to draw warrants except upon an unexhausted specific appropriation has no application to the salary of an officer fixed under express authority of the charter in a valid ordinance,

COOPER, P. J.

This appeal is from a judgment denying appellant’s application for a writ of

mandamtis,

to compel the respondent to audit a demand upon the treasury of the city and county of San Francisco for the salary of appellant, as assistant district attorney, for the month of July, 1906. It is conceded that there is money in the general fund in the treasury of the city and county of San Francisco sufficient to pay the claim; that such money has not been appropriated to the payment of any claim or demand upon the said treasury, and that proper demand has been made upon the respondent.

[416]

The respondent contends that the board of supervisors had made no specific appropriation of money for the payment of appellant’s salary for the fiscal year beginning July 1,1906, and upon this ground claims that his refusal was justified, and this was the view taken by the judge of the superior court. It will, therefore, be necessary to consider the nature of the demand, and the law relative thereto.

Under the charter of the city and county of San Francisco (art. V., sec. 3), the district attorney is authorized to appoint seven assistant district attorneys, who shall each receive an annual salary of $3,600. The district attorney appointed seven assistant district attorneys under the authority above cited, and appellant was not one of the seven so appointed.

The charter further provides (art. XVI, sec. 35) that when any officer shall require additional deputies, application shall be made to the mayor, who shall make investigation as to the necessity for such additional deputies, and if he find the same necessary he may recommend to the supervisors to authorize the appointment of such additional deputy, and thereupon the supervisors, by an affirmative vote of not less than fourteen members, may authorize such appointment and provide for the compensation of such deputy.

It will thus be seen that it was the intention of the framers of the charter to prevent the appointment of deputies unless deemed necessary by the principal officer, the mayor and fourteen of the supervisors.

Application having been made by the district attorney to the mayor, and the mayor finding it to be necessary, recommended to the supervisors the appointment of an additional assistant district attorney. Upon such recommendation the board of supervisors, on the twenty-ninth day of May, 1905, duly adopted an ordinance, authorizing the district attorney to appoint an additional assistant district attorney at a salary of $250 per month, which ordinance was duly approved by the mayor. On January 8, 1906, the district attorney, in pursuance of the charter, and the ordinance so adopted by the board of supervisors, duly appointed the appellant such additional assistant district attorney. Appellant duly qualified, took the oath of office, and entered upon the discharge of his duties, and his appointment has not been revoked or annulled. He performed the duties required of him as such assistant district attorney for the month of July, 1906, and has

Harrison v. Horton

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Synopsis

COOPER, P. J.

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