Keith v. Ramsey

CHIPMAN, P. J.

Plaintiff was on the eighteenth day of October, 1915, appointed constable of number 3 township, Lassen County, to serve an unexpired term of that office which commenced on the first Monday in January, 1915. At the commencement of the term, constables were compensated by the fee system as provided in section 4281 of the Political Code amended in 1913 (Stats. 1913, p. 1226). At the session of the legislature in 1915, said section was amended by fixing the salary of the constables in Lassen County at twenty-five dollars per month. Plaintiff made demand upon the county auditor for payment of salary as provided by the section as amended in 1915, but warrant was refused. Thereupon, plaintiff brought his action in

mandamus

against the said auditor in the superior court of Lassen County and judgment went in favor of defendant. Plaintiff thereupon appealed to this court and now contends: (1) That the office of constable is a township office and that the constitutional inhibition of article XI, section 9, does not apply thereto; and (2) that the change from fee to salary does not constitute an increase in compensation.

In support of the first point it is contended that said section 9 of article XI of the Constitution prohibits an increase in the compensation of county, city, town, or municipal officers, but does not apply to constables, for the reason that they are neither county, city, town, nor municipal officers. This question was raised in the case of

Cox

v.

Jerome,

31 Cal. App. 97, [159 Pac. 884], and was decided adversely to appellant’s contention. The court there said: “In cases in which the question as to the right to increase the compensation of justices or constables was involved, and there have been several, it has never been denied that the provisions of section 9 of article XI affect these officers, and the supreme court has so

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assumed, without any suggestion that the subject was open for debate.” As bearing somewhat upon the subject,

Smith