CONREY, P. J., Dissenting.—I dissent.
The constitution, in article XI, section 7^, provides that the charter of a county when duly adopted and approved “shall become the organic law thereof relative to the matters therein provided. ’ ’ The amendment to the charter of San Bernardino County, having been so adopted and approved, is a part of that organic law. The provisions of said section 7% were contained in that section as adopted in the year 1911 and remain unchanged in the same section as amended in 1914.
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Section 9 of article XI of the constitution has not been amended since the adoption of the constitution in 1879. It reads as follows: “The compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office; nor shall the term of any such officer be extended beyond the period for which he is elected or appointed.” Respondent contends that this provision of section 9 is applicable to officers of county governments operating under freeholders’ charters. This proposition is denied by petitioner. This presents the only question in the case.
Said section 7% of the constitution provides that “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: ... 2. For sheriffs . . . for the election or appointment of said officers, or any of them, for the times at which and the terms for which, said officers shall be elected or appointed, and for their compensation, or for the fixing of such compensation by boards of supervisors, ...” In framing the. charter for San Bernardino County advantage was taken of the authority thus given to fix the salary of the sheriff at a sum named in the charter, instead of leaving the control of that matter to the board of supervisors.
The charter amendment attaching to the office of sheriff a Xsalary of three thousand six hundred dollars per annum is in force as a part of the charter. Therefore, it is operative as applied to the sheriff now in office, unless it plainly appears in the amendment itself, or by virtue of some controlling provision of the constitution, that such operation is intended to be postponed to some subsequent time. No such intention to postpone is contained in the charter amendment, or in said section 7p2 of article XI of the constitution. On the contrary, the charter amendment itself affirmatively declares the intention that it shall go into effect and be in force, “and the salary fixed shall be effective” on and after January 8, 1923. And then, not content with the implied repeal of the former salary provision for the sheriff, the amendment affirmatively states that all provisions of said article II in conflict with the amendment “are hereby repealed.” The effect of a direct
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repeal of the salary clause, standing alone, would be to immediately revive the provisions of the general law (the operation of which is now suspended), which give to the sheriff of San Bernardino County, as a county of the ninth class, a salary of four thousand five hundred dollars per annum. (Pol. Code, secs. 4005c, 4006 and 4238;
Jones
v.
De Shields,
187 Cal. 331 [202 Pac. 137].)
It is not claimed that there is any other provision of the constitution outside of section 9 of article XI that would interfere with the complete and present effectiveness of the charter amendment now under consideration. It has been held by this court that the constitutional provision authorizing counties to adopt freeholders’ charters for purposes of local government “was comprehensive to the end that the counties' should have the power to provide a complete system for the election and appointment of their officers and for the fixing of their compensation.”
(Gibson
v.
Civil Service Com.,
27 Cal. App. 396 [150 Pac. 78].) Again, in the same decision, this court said that “plainly, the intent was of the people when they adopted the amendment to give to counties in their charter government complete" control of all officers thereof as to their election or appointment and the compensation to be paid to them.” In
Puterbaugh
v.
Wadham,
162 Cal. 611, at page 616 [123 Pac. 804, 806], the supreme court said: “Section 9 of article XI is an inhibition directed to the legislature because it applies not only to attempted increases of salaries but to efforts to extend terms of office. The latter part of the section is unquestionably a limitation upon legislative power and the former from its association should be similarly construed.” Consequently, it was there held that the section could have no application to a change in salary due to the passing of a city, not by legislative act, but by increased population, from one class to another— not a legislative act, but an automatic change. While in the present instance the change of salary is not due to any automatic change of conditions, it is due to a constitutionally authorized act of the people of the county, which became effective upon the approval thereof by the legislature. But such approval was not itself an act of legislation. In
Mesmer
v.
Board of Public Service Commrs.,
23 Cal. App. 578 [138 Pac. 935] this court, relying upon the authority of earlier decisions of the supreme court, held that the legis
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Iature does not exercise law-making power when it approves freeholders ’ charters. It was pointed out that the legislature has no power to mold or change a freeholders’ charter when such instrument is before it for consideration, and that the approval is by resolution and not by bill. In
Puterbaugh
v.
Wadham, supra,
the supreme court declared that section 9 of article XI of the constitution “was designed to protect taxpayers from legislative interference with their rights by increasing the compensation paid to their elected officers
without consent of the electorate,
...”
Since it appears from the decisions to which I have referred that the adoption and approval of the charter amendment did not include any legislative act by the legislature of the state, or any legislative interference with the control by the electors of the county, of the allowance of compensation to their elected officers, I think it should be held that the right of petitioner to receive compensation at the rate provided in the amended section accrued immediately when the amendment became a part of the charter. In coming to this conclusion, I am not unaware of the fact that in
Cameron
v.
City of Richmond,
42 Cal. App. 262 [183 Pac. 604] it was assumed by the court (there being apparently no contention made to the contrary) that the right of a city operating under the freeholders’ charter to increase the compensation of a municipal officer was subject to the provisions of said section 9 of article XI. On that unchallenged assumption the actual question presented for consideration was decided. The attempted increase of salary in that case was by municipal ordinance, adopted by the city council, and not approved by the electors as provided by the charter in the case of an attempt to vary the compensation specified in the charter.
Also, I am of the opinion that that part of section 7% of article XI, which grants authority by a freeholders' charter to provide for the compensation of the sheriff and of certain other officers, is a special provision granting an express power for a specific purpose, and that by reason of that character it would prevail over a more general provision, adopted at an earlier date, like that contained in section 9 of article XI, which, by its terms, refers to “any county, city, town, or municipal officer,” and does not take
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into account the formation of a county government by freeholders’ charter.
I think that the peremptory writ should issue.
A petition by petitioner to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 27, 1923.