Lougher v. Soto

SMITH, C.

The case is a proceeding for

mandamus

to the defendant requiring him to issue to the plaintiff a warrant for ten dollars, his salary for the month of April, 1899, as constable of township Mo. 7, Contra Costa county. The plaintiff had judgment in the court below.

The case involves the construction and validity of section 183, subdivision 14 of the County Government Act of 1897; which provides in effect that the constables of townships Mos. 1 to 10, inclusive, of counties of the twenty-sixth class (which includes Contra Costa only) shall receive as compensation for services—in addition to fees, etc.—certain salaries; and, among others, the “constables of township Mo. 7, ten dollars per month.”

To apprehend the questions involved it should be premised that at the date of the passage of the act—April 1, 1897—there were in existence in the county of Contra Costa iwo systems of townships—the one in actual operation, but to expire with the terms of the incumbent officers in January, 1897, by which the county was divided in ten townships; the other, established by order of the board of supervisors of date August 3, 1896, and to go into effect on the termination of the old

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system, under which there were sixteen townships, of which five (including No. 7) corresponded in name and territory with those of the old system. The plaintiff, who was elected at the general election of 1898, holds office under the new system.

It is claimed by the appellant’s counsel that the act must be construed as referring to the latter system; and his position is, that as it provides for only ten of the sixteen townships, it is in contravention of section 25, subdivision 29, article IV, of the constitution, which forbids the enactment of “local or special laws .... affecting the fees or salary of any officer.” On the other hand, it is contended that the act primarily, referred to the system of townships in actual operation at the time of its passage, and thus in fact provided for all the constables of the county. But, according to this contention, the act is not confined in its application to the old system, but applies also to the new; and, without this proposition, the case of the respondent, being that of an officer of the new system, would fail. Hence, thus construed, the act still remains a local and special law, applying only to some of the townships— in this case five out of sixteen—and to certain of the constables of the county. And upon some new division of the county by the supervisors, under the power vested in them by section 35, subdivision 3, of the act, the ease might become even worse.