SHAW, J.,
Concurring.—I concur in the judgment, but for reasons somewhat different from those set forth in the opinion of Mr. Justice Lawlor.
The petitioner was appointed deputy county clerk of the county of Tehama by the clerk thereof. • In the instrument of appointment he was named as “chief deputy.” The word “chief,” however, should be considered immaterial in considering the validity of his appointment as a deputy county clerk, if, as is contended, there is no office specifically designated as “chief deputy county clerk.” He prays for a writ of mandate to compel the auditor to issue a warrant for his salary at the rate of one hundred dollars a month for services rendered as such deputy county clerk, the auditor having refused on demand to issue such warrant.
Tehama County is operated under a special charter framed and adopted in pursuance of section 7½, article XI, of the
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constitution. That section authorizes any county to frame a charter for its own government in the manner therein provided. It provides that when such charter is duly framed and approved by the legislature it “shall become the charter of such county and shall become the organic law thereof relative to the matters therein provided . . . and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter.”
Subdivision 4 of the portion thereof declaring what it shall be competent to insert in such charters is as follows: “For the powers and duties of the board of supervisors
and all other county officers,
for their removal and for the consolidation and segregation of county officers, and for the filling of all vacancies occurring therein;
provided,
that the provisions of such charter relating to the powers and duties of boards of supervisors
and all other county officers
shall be subject to and controlled by general laws.”
This proviso is probably modified to some extent by a subsequent provision as follows: “Whenever any county has framed and adopted a charter, and the same shall have been approved by the legislature, as herein provided, the general laws adopted by the legislature in pursuance of sections four and five of this article, shall, as to such county, be superseded by said charter as to matters for which, under this section it is competent to make provision in such charter, and for which provision is made therein, except as herein otherwise expressly provided.”
. Sections 4 and 5 of this article referred to in the last quotation are the sections which authorize the legislature to establish a system of county governments and to provide by law for the appointment of the several county officers named in said section 5 and to prescribe their duties and regulate their compensation. .
It will be seen from these provisions of section 7% that the powers and duties of county officers in any county adopting a special charter under that section remain subject to and controlled by general laws respecting anything relating thereto concerning which the charter makes no provision. If, therefore, we find no valid provision in the charter with respect to the appointment and compensation of deputy county clerks, it would follow that the provisions of the general law regarding them would prevail. The
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charter contains certain provisions on that subject with respect to county clerks. It provides that there shall be a county clerk and that, he “shall be
ex-officio recorder.”
(Stats. 1917, p. 1883.) It further provides that his salary as clerk and recorder shall be two thousand four hundred dollars per annum and that “his chief deputy shall receive one thousand two hundred dollars per annum.” (Art. IV, sec. 2, Stats. 1917, p. 1883.) It also provides in section 4 of article III that “each county officer shall have the powers and perform the duties now or- hereafter prescribed by general law as to such officer, except as otherwisé provided by this charter.” Section 9, article II, of the charter, provides that “the supervisors shall appoint all county and district officers other than elective officers, their assistants and deputies, except as otherwise provided in this charter,” and shall provide by ordinance for the terms of office and for the compensation of these appointive officers, “unless such terms of office are otherwise provided by law or by this charter.” Inasmuch as the compensation of the chief deputy clerk was attempted to be provided for by the charter in article IV aforesaid, it follows that this last provision cannot be construed to authorize the supervisors to provide compensation for such chief deputy county clerk.
It is conceded by the parties hereto that the supervisors have never by ordinance or otherwise appointed or provided for the appointment of any-deputies or fixed the compensation of any of them.
The provisions of section 7½ of article XI of the constitution above set forth, it is to be observed, do not authorize the legislature, or the county, by means of a freeholders’ charter, to provide directly for the appointment of deputy county officers or for their compensation. On the contrary, that section prescribes in subdivision 5, as above shown, that the charter. shall provide for the fixing and regulatidn by the board of supervisors by ordinance for such appointment and compensation. The matter is not to be fixed by the charter itself, but by ordinance adopted by the board of supervisors. It follows, therefore, that the charter contains no valid provision either for the appointment of the petitioner or other person as deputy county clerk, or for his compensation when’ appointed. Also, it follows from the fact that the charter contains no provision therefor, that
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the provisions of the general law empowering the county clerk to appoint his own deputy and fixing the compensation of such deputy are not superseded by the charter, but remain in full force as if no charter had been adopted. The conclusion is therefore inevitable, since the general law allows the deputy county clerk a salary of one hundred dollars per month and since his appointment as chief deputy is in substance an appointment as deputy county clerk, that the petitioner is entitled to the salary demanded by him, and that the writ of mandate should issue as prayed for.