Cothran v. Cook

HARRISON, C.

Mandamus.

The appellant was the, duly elected and acting justice of the peace of judicial township No.

3

of the county, of Merced

[469]

from the first Monday after the first day of January, 1903, and performed the duties of that office during the month of April of that year. On the first day of May he demanded of the respondent, who was the auditor of that county, that he draw his warrant upon the treasurer in his favor for the sum of one hundred dollars, as payment of his salary during the month of April. Upon the refusal of the auditor to comply with his demand, except in the amount of seventy-five dollars, he instituted the present proceeding to compel the issuance of the warrant demanded hy him. The superior court denied his application, and he has appealed from its judgment.

Merced County belongs to the thirty-ninth class of counties, and section 196 (subd. 13) of the County Government Act in force during the year 1903 (Stats. 1901, p. 773) provides that justices of the peace of counties of that class in townships having a population of more that thirty-five hundred shall receive a salary, for all services rendered by them in criminal cases, of one hundred dollars per month, payable monthly; and in townships having a population of less than thirty-five hundred and more than two thousand, seventy-five dollars per month.

At the hearing in the superior court, it was admitted that the census taken by the United States in 1900 showed the population of judicial township No. 3 to be 3,233, and that no census of its population had since been taken; that on June 12, 1901, said township was by an ordinance of the board of supervisors of the county divided, and that out of a portion of its territory another judicial township had been formed and had since existed as so formed. March 11, 1903, the board of supervisors passed the following ordinance, viz.:—

“An ordinance fixing and determining the population of judicial township No. 3, county of Merced, state of California.

“The board of supervisors of Merced County do ordain as follows: The population of judicial township No. 3 of the county of Merced, state of California, is by the board of supervisors of the county of Merced, state of California, found and declared to have been 3,525 on the 31st day of October, A. D. 1902, and it is further by said board found and declared that the population of said judicial township