Lewis v. Widber

McFarland, J.

This is an original application here for a writ of mandate requiring the respondent, who is treasurer of the city and county of San Francisco, to pay an audited claim of petitioner for his salary as chief clerk in the office of registrar of voters, for the month of June, 1893.

The facts are that the office of petitioner was established, and his salary fixed at one hundred and fifty dollars per month, by a statute of the state legislature; that when, on August 3, 1893, he made demand on the respondent for the payment of his claim for salary for the month of June preceding, there was plenty of money in the general fund of said city and county to pay the same; but that there was no money in said fund which liad been derived from the revenues of the city for the fiscal year ending June 30, 1893. The charter of said city and county — commonly called “the Consolidation Act”—provides that the fixed salaries of officers shall be paid out of the general fund ;

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ami that in case of a deficiency in the fund, demands for salaries shall be registered and paid out of any moneys after-wards coming into the fund. (Secs. 95, 96.) It nowhere limits the payment of such salaries to the revenue of any particular year. .

The respondent contends—or, rather, he suggests that somebody else might give him trouble by contending — that he should not pay petitioner’s salary on account of section 18 of article XL of the state constitution, which reads as follows:

“ No

county, city, town, township, board of education, or school district, shall incur any indebtedness or liability in any manner, or for any purpose, exceeding in any year the income and revenue provided for it for such year, without the assent of two thirds of the qualified voters,” etc. It is quite apparent, however, that this clause of the constitution refers only to an indebtedness or liability which one of the municipal bodies mentioned has itself incurred — that is, an indebtedness which the municipality has contracted, or a liability resulting, in whole or in part, from some act or conduct of such municipality. Such is the plain meaning of the language used. The clear intent expressed in the said clause was to limit and restrict the power of the municipality as to any indebtedness or liability which it has discretion to incur or not to incur. But the stated salary of a public officer fixed by statute is a matter over which the municipality has no control, and with respect to which it has no discretion; and the payment of his salary is a liabilily established by the legislature at the date of the creation of the office. It, therefore, is not an indebtedness or liability incurred by the municipality within the meaning of said clause of the constitution.