Gross v. Kenfield

The Court : The petitioner was elected Clerk of the Supreme Court under a clause of § 10, art. xxii, of the Constitution, which [627]provides that “the first officers chosen after the adoption of this Constitution shall be elected at the time and in the manner now provided by law.” And the terms of office of all such officers are fixed by another clause of the same section. The Constitution, so far as it “ relates to the election of officers,” and “ the commencement of their terms of office,” went into effect July 4th, 1879. (§ 12, art. xxii.) The law then in force relating to the time and manner of electing officers was continued in force until after the election of the first officers chosen under the new Constitution. And so was the law which fixed the commencement of their terms of office. Before and at the time of the adoption of the Constitution there was a law in force which provided for the election of a clerk of the Supreme Court, prescribed his duties, and fixed his compensation; and that law, not being inconsistent with the Constitution, should be treated, we think, as it would be if the present Constitution had been in force at the date of its passage. (§ 1, art. xxii.)

The same reason exists against increasing or diminishing the compensation of the present incumbent during his term of office as will exist against increasing or diminishing the compensation of his successor during his term of office. And it seems to us that the constitutional prohibition applies as well to the one elected at the first, as it will to those elected at subsequent elections, under the present Constitution. And if so, it follows that § 755 of the Political Code as amended by the Act of April 23rd, 1881, is inoperative as to the compensation to be paid to the clerk of the Supreme Court whose term of office had commenced before the date of said" enactment j and that said clerk is entitled to receive the compensation as fixed by the law in force at the date of the commencement of his term of office.

Let the peremptory writ of mandate issue, as prayed for in the petition..