Elliott v. Van Delinder

WORKS, J.

Petitioner is a township justice of the peace. During his incumbency of that office he also held an employment with the department of engineering of the state, under which employment his duties were to obtain rights of way for the construction and installation of certain state highways. He has been engaged in the discharge of the duties of the employment and has received for his labors in that behalf a certain salary from the state treasury. The auditor of the county in which petitioner holds his office as justice of the peace issued to him a warrant for his salary as justice, for a month during which he had exercised his employment under the department of engineering and for which he had been paid his salary by the state. Petitioner presented the warrant to defendant, the county treasurer of the county, and defendant refused to pay it. Petitioner then filed in the superior court his petition for a writ of mandate requiring defendant to make the payment. An alternative writ issued, defendant answered and the proceeding came on for trial on an agreed statement of facts. Judgment was rendered directing the issuance of a peremptory writ and defendant appeals.

Section 1 of article III of the constitution of the state reads: “The.powers of the government of the state of Cali--' fornia shall be divided into three separate departments—the legislative, executive, and judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except as in this Constitution expressly directed or permitted.” It is contended by appellant that respondent comes within the inhibition of this section in his attempt to discharge the duties of both his judicial position and his employment above mentioned, and that, as he has received his salary for .the month under the employment, he is not entitled to the salary for that period as justice of the peace. We cannot perceive how this ques

[719]

tion is to be considered in the present proceeding. It is too plain for argument that the constitution, in its provision that no person “charged with the exercise of powers” under one of the departments of government “shall exercise any function appertaining to either of the others,” affects the title to offices. The inhibition means that no person shall hold offices under different dep. ‘"•uents of the government at the same time, and it exists for the purpose of aiding in the preservation of the barriers which under the American system have been erected between the three departments. The truth that the section deals with the titles to offices permeates the opinion of the supreme court in the leading case of