Kinsey v. Kellogg
Before: McKinstry
Synopsis
Cotnm Glebe—Sefabatioh of Offices—Salary.—On February 28, 1876, the offices of county clerk, auditor, and recorder of Humboldt County were united in the same person. On that day the legislature passed an act fixing the annual salary of the clerk for all services required of him in these several offices at 85,000. Subsequently, by an act of the legislature, Humboldt County was constituted a county of the second class, and the board of supervisors separated the offices of auditor and recorder from that of county clerk, and fixed the salary of the latter at 82,700. Held, that the act was intended to fix the salary for the several offices while they were united in the same person, and that when the offices were separated, the clerk was not entitled to receive the salary intended for all; and that as the act did not determine how much should be paid on account of each of the offices, it became inoperative when the separation occurred.
Id.—Boabd of Supervisobs.—In the absence of any law fixing the compensation of the county clerk, the board of supervisors had authority to fix it.
McKinstry, J. February 28, 1876, the following legislative act was approved by the governor: —
“ Section 1. The county clerk of Humboldt shall receive for all services required of him as county clerk and ex-officio clerk of the District Court, Probate Court, board of supervisors, board of equalization, auditor, and ex-officio county recorder, a salary of $5,000 per annum, which salary shall be in full for all services required of and performed by him, and it shall be paid monthly out of the county treasury. He shall collect and safely keep all fees of whatever kind or nature allowed him by law for services rendered by him in his several official capacities, and upon the first Monday of each and every month, shall pay the same over to the county treasurer of said county, and at the same time shall make out and file with said treasurer a full and accurate statement under oath of all fees, of whatever kind or capacities, for the preceding month.
“ Sec. 2. This act shall take effect and be in force from and after the first Monday in March, eighteen hundred and seventy-eight. And all acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed.” (Stats. 1875-76, p. 81.)
By the census taken in the year 1880, Humboldt County was found to contain a population exceeding eight thousand and less than twenty thousand inhabitants. The county was organized as a county of the second class, and since July 1,1881, has had at all times a board of supervisors consisting of five members, and other officers prescribed for counties of the second class. (Pol. Code, §§ 4006,4007, 4025.)
The board of supervisors did not, at any time prior to the election of plaintiff as county clerk, as hereinafter mentioned, unite or consolidate the office of county clerk with those of [113]recorder or auditor, or either of them. The board of supervisors, by an ordinance duly adopted on the 8th day of July, 1882, united and consolidated the offices of recorder and auditor, and caused such ordinance to be duly recorded and published for three months before the general election held November 7,1882. (Pol. Code, § 4106.)
At such general election plaintiff was elected county clerk, and defendant recorder and ex-officio auditor of Humboldt County. Plaintiff entered upon the discharge of the duties of county clerk on the first Monday of January, 1883, and defendant commenced to act as recorder and auditor on the 8th day of January, 1883, and has ever since discharged the duties of said offices.
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