San Luis Obispo County v. Darke

McKinstry, J. This action is against F. E. Darke, and the sureties on his official bond, to recover the fees collected and retained by him as county recorder. Darke was the recorder of San Luis Obispo County from January 1, 1883, to January 1, 1885. Prior to the year 1881 the offices of county clerk, recorder, and auditor of San Luis Obispo County were held by the same person. Since 1881 each of the three offices has been legally held by a different person. By the act of March 31, 1876, Stats. 1875-76, p. 608, it was provided that the “county clerk” should receive a certain annual salary as his only compensation in all three capacities as county clerk, county auditor, and county recorder. After 1881, and while a different .person was the incumbent of each of the three offices, the county clerk was entitled to receive no portion of the salary fixed by the law of 1876. That law became inoperative because it was intended to be operative only while the three offices were filled by one person. (Kinsey v. Kellogg, 65 Cal. 111.) Was there, then, no law providing for compensation for the county clerk, recorder, and auditor, respectively? The question is answered by the decision in Stoddard v. Williams, 65 Cal. 473. The statute applicable to the fees of recorder of San Luis Obispo County was the act of March 29, 1870. (Stats. 1869-70, p. 438.) Section 182 of the county government act, Stats. 1883, p. 365, provided: “The provisions of this act, so far as it relates to the fees and salaries of all officers. named, .... shall not affect the present incumbents; provided, that when the salary of any such officer, or fees in lieu [95]of such salary, is not now fixed by law, the same shall, as to such officer, take effect immediately.” It follows, that while the defendant Darke was in office he was entitled to receive and retain for services as recorder the fees allowed by the act of 1870. It is suggested, however, that the act of March 29, 1870, is “inconsistent” with the provisions of section 5, article 11, of the constitution,—provisions which “require legislation to enforce them,”—and that the act of 1870 “ceased” on the first day of July, 1880. But wherein is the act of 1870 inconsistent with legislation which the legislature, to be elected under the constitution, was commanded to enact by section 5, article 11 ? There is no mandate in section 5 directing the legislature to provide for the payment of salaries to county officers, nor does it prohibit the legislature from providing that such officers shall be compensated by fees. The legislative construction has been adverse to the view presented by counsel herein. The county government act provides that county surveyors and coroners, and public administrators, as well as justices of the peace and constables, shall be compensated only by such fees as are allowed by law. (Stats. 1883, p. 835. See also sec. 182, supra.) The legislature is directed to provide for the “strict accountability” of county and township officers for all fees which may be collected by them. This, read with the context, may or may not include fees collected for the services of those collecting them. But an officer who is compensated by fees may be made answerable with respect to moneys collected as fees, and may be required to render an account or relation of particulars with respect to charges made by him. It would be giving a forced construction to the clause of the constitution to say it prohibits the legislature from providing for the compensation of any county or township officer otherwise than by salary payable out of the county or township treasury, and that it requires that in every case a county or township officer