Carroll v. Siebenthaler

By the Court, Rhodes, J.: The principle that the salary annexed to a public office is incident to the title to the office, and not to its occupation and exercise, was affirmed in Dorsey v. Smiih, 28 Cal. 21, and Stratton v. Oulton, 28 Cal. 44. The petitioner having been elected and qualified, and being ready and willing to enter upon the discharge of the duties of his office, became entitled to the salary attached to the office, and his right to the salary was unaffected by the fact that an usurper discharged the duties of the office. (Dorsey v. Smith, supra.)

The Act of February 7th, 1860 (Stats. 1860, p. 20) authorized the Board of Supervisors to fix the salary of the members of the Board, but the salary of each member was not to exceed six hundred dollars per annum. The Board, under the authority granted, fixed the salary at the rate of fifty dollars per month. The salary, having been fixed at a monthly rate, became due and payable monthly, in the absence of any provision in the Act or the order of the Board establishing a different rule. The occupation of the office by an intruder did not have the effect to defer the time of payment until the intruder was ousted. The petitioner’s right to the salary depended, as we have said, upon his right to the office, and his performance or readiness to perform its duties, and therefore the right to the salary could not possibly have its origin in the judgment determining that he was entitled to the office from the commencement of the term for which he was elected. Had the intruder vacated the office or died immediately before the time when the action was brought to determine the title to the office, and had the petitioner then [196]entered into office, his right to the back salary would have been as clear as it now is; and it is scarcely possible that he would have relinquished the claim to the salary because he could not obtain a judgment affirming his title to the office.

It is provided by the Act of March 5th, 1864, “ more effectually to. limit the term for the presentation and allowance of claims against counties,” (Stats. 1863-4, p. 152,) “ that no unaudited claim or demand of whatever description shall hereafter be approved, allowed, or paid out of any county treasury, or out of any public funds of any county, unless such claim or demand be duly presented to and be duly audited and allowed by the proper auditing officer, Board, or authority, within one year after such claim or demand shall accrue or become due and payable. * * * All claims and demands not presented and allowed * * * as aforesaid, shall be forever barred and extinguished.” After the expiration of that time the county does not remain liable for those claims and demands, because they are extinguished. The Board of Supervisors have no authority to audit or allow them, for they are not county charges. Were this a question of error in the exercise of discretion, or in any other respect, in a matter of which the Board, had jurisdiction, there would be sufficient grounds for holding that their order would be conclusive; but in a matter of which the Board has no jurisdiction, any other order than one of dismissal or rejection is simply void. If a claim is barred and extinguished, the Board has no more authority to allow it than one that has not accrued. The statute is not merely advisory to the Board, but it is peremptory, commanding the Board not to allow, and the other officers not to pay, claims that are barred and extinguished. It was not intended that the Board should have power, under the Act, to allow the claims of friends and reject those of enemies, which were not presented within the statutory period. The rule of the statute is inflexible and peremptory. The non-presentation of the claim within the year extinguishes it. It is not only the right, but it is the duty of the Auditor and