Whiting v. Haggard

The Court: On the authority of Peachy v. Board of Supervisors of Calaveras County, 8 P. C. L. J. 813, and the demurrer to the petition is overruled.

McKee, J., dissenting: I dissent. The case, as presented by the record, is this: On the seventh of January, 1882, the petitioner, being County Clerk of Plumas county, and ex-officio Clerk of the Board of Supervisors and Auditor of the county, issued to himself, under the provisions of an Act of the Legislature entitled "An Act to regulate fees of office and salaries of certain officers,” etc., approved March 5,1870, a warrant for his salary as Clerk of the Board of Supervisors for the month of December, 1881. Upon presenting the warrant to the Treasurer of the county for payment, payment was refused on the ground that the Act of 1870 had been repealed. That Act had been, in fact, repealed by an Act entitled “An Act in relation to certain officers in Plumas County, and to fix the compensation thereof,” approved March 6,1878, but the repealing Act was not to take effect until the first Monday in March, 1880. Meanwhile, the Constitution of 1879 was adopted by the people of the State, and went into effect at twelve o’clock [514]M. of the first day of January, 1880, and the question arises, What effect did the adoption of the Constitution have upon these two legislative enactments?

By Subdivision 1, Section 5, Article xi, the Constitution made it the duty of the Legislature to provide, by general and uniform laws, for the election, in the several counties of the State, of such county officers as were required by law, including County Clerk and other officers, and prescribe their duties and fix their terms of office. Legislation to enforce this section of the Constitution was, therefore, necessary. At the time the warrant in controversy was drawn, such legislation had not been had. And according to Section 1, Article xxii, all laws repugnant to the provisions of the Constitution, which required to be enforced by legislation, were repealed on . the first of July, 1880, if not sooner altered or repealed by the Legislature; while all laws in harmony with the provisions of the Constitution remained in “ full force and effect,” undisturbed by the adoption of the Constitution. The Act of 1870, being in force when the Constitution was adopted, was consistent or inconsistent with the provisions of the Constitution. If' inconsistent, the Act expired by limitation on the first of July, 1880. If consistent, its existence and force were neither disturbed nor affected by the Constitution. It is manifest that the people in adopting the Constitution intended not to cause any inconvenience to, nor to disturb in any way, the order of things as it existed in the State, by the alterations and amendments of their organic law, except so far as it might be affected by the amendments themselves. This is clearly expressed by Section 1, Article xxii. of the Constitution: All the institutions of the State, all rights of person and property, and all 'existing laws, under and by which institutions existed and rights were protected, were left unchanged— just as though the Constitution had not been amended, except as to the effect which the amendments had upon them. Some of the former Courts were abolished; others with new names, were created and substituted for the former, in such a way as not to obstruct nor derange the judicial machinery of the State, nor to cause the slightest interference with judicial records, books, papers, and proceedings in courts. All writs, prosecutions, actions, and causes of action, all indictments or