County of Los Angeles v. Hammel

JAMES, J.

Judgment in favor of defendants followed upon the demurrer to plaintiff’s complaint being sustained without leave to amend. This appeal is from that judgment.

Appellant, the county of Los Angeles, sought by its action to recover from respondent Hammel and his codefendants, the sureties on his official bond, a sum of money which it was alleged had been collected after June 1, 1913, as fees for services rendered by said Hammel in his official capacity as sheriff of the county. It was the contention of the sheriff that the law entitled him to retain the fees for his own use as part of his compensation. The judgment of the lower court was in agreement with that contention. The people of the county, at the November election of 1912, adopted for the purposes of local government a charter pursuant to the authority given by an amendment to the state constitution,

[581]

known as section 7% of article XI. At the time this charter became of effect the sheriff of the county was serving an unexpired portion of the term for which he had theretofore been elected. In addition to the salary allowed him, he had received and retained certain fees. These fees were retained by him under express authority of section 4299 of the Political Code, which in the part material to this consideration, provides as follows: “The salaries and fees provided in this title shall be in full compensation for all services of every kind and description rendered by the officers named in this title either as officers or ex-officio officers, their deputies and assistants, unless in this title otherwise provided, . . . provided, further, that the sheriff shall be entitled to receive and retain for his own use, five dollars per diem for conveying prisoners to and from the state prisons, and for conveying persons to and from the insane asylums, or other state institutions not otherwise provided for by law; also, all expenses necessarily incurred in conveying insane persons to and from the insane asylums, and in conveying persons to and from the state prisons, or other state institutions, which per diem and expenses shall be allowed by the board of examiners and collected from the state. . . . The sheriff may retain for his own use the mileage for service of papers or process issued by any court of the state; ...” Under this provision the authority of the sheriff to retain the fees as a part of his general compensation, is too clear to admit of dispute. We then have to determine as to whether the charter adopted by the people for the government of the county worked any change in the matter of the amount of the sheriff’s compensation. Under the power given by the constitutional amendment to counties permitting them to adopt charters for the control of their local affairs, it is provided that it shall be competent in such charters to provide for the election and appointment of officers, and “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.” Agreeable to the terms of this provision, it was provided by section 11 of article III of the Los Angeles County charter, that the board of supervisors should provide by ordinance for the compensation of elective officers, unless such compensation was otherwise fixed by the charter. . There was a further provision, being section 52 of article XII, which