Freman v. Marshall

COOPER, C.

Appeal from the judgment awarding a writ of mandate against the defendant as county treasurer of Fresno County. There being no bill of exceptions nor statement of the evidence, the findings are conclusively presumed to be true for the purposes of this appeal.

From them it appears that on the first day of July, 1898, the district attorney of Fresno County appointed plaintiff deputy district attorney of said county, and thereafter he took the proper oath, entered upon the discharge of the duties of said office, and continued to be such deputy district attorney up to January, 1899; that there became due plaintiff, under the said appointment, the sum of one hundred and twenty-five dollars for services performed by him in his official capacity during the month of October, 1898; that on the seventh day of November, 1898, the county auditor of said county drew, and delivered to plaintiff, a warrant on the defendant county treasurer for the amount of said October salary, which warrant was by plaintiff duly presented to the defendant as treasurer of said county with a request for the payment thereof; that although there was sufficient money in the county treasury, in the proper salary fund, not otherwise appropriated, the defendant refused, and has continued to refuse, to pay the same, and the amount thereof is still due and unpaid. The defendant claims, as matter of law, that the judgment is erroneous for several reasons, which will be discussed in the order presented:

1. The County Government Act of 1893 (Stats. 1893, p. 410), as to the district attorney of Fresno County, provides: “The district attorney may appoint one assistant district attorney, at a salary of two thousand dollars per annum, and two deputy district attorneys, at a salary of

fifteen hundred dollars

per annum.”

It is claimed that under the above provision, conceding it to be valid, the deputies are both to receive fifteen hundred dollars per annum, and not fifteen hundred dollars each. The claim is so palpably contrary to the common-sense view of the

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