Marquis v. City of Santa Ana
Before: Harrison
Synopsis
Municipal Corporations—Power Over Salary of Officers.—The power of a corporation to fix or change the salary of its officers rests entirely upon statute, and the exercise of this power is subject to all of the limitations contained in the statute.
Id.—Change of Salary of City Assessor—Municipal Government Act.—A municipal corporation which is subject to the municipal government act, which provides that the compensation of its city assessor shall not be increased nor diminished during his term of office, can neither directly, by express ordinance for that purpose, diminish the amount of his salary during his term, nor can it accomplish that result indirectly, by diminishing the duties of his office or dispensing with his services.
Id.—Municipal Taxation—Assessment by County Assessor—Election of Act by Ordinance—Repeal of Salary of City Assessor—Repeal of Poll Tax—Abolpiton of Office—An ordinance adopted by a municipal corporation of the fifth class, electing to avail itself of the provisions of the act of March 2, 1891, to make the assessment of property by the county assessor the basis of municipal taxation, and also repealing a former ordinance fixing the compensation of the city assessor, and another ordinance repealing all provisions for street poll tax, cannot have the effect to alter or change the salary of the city assessor or to abolish his office.
Id.—Right of Officer to Salary—Cessation of Duties.—The right of an officer to the salary fixed by law for that office is not impaired by any change that may be made in the duties of the office, or even by an entire cessation of those duties, so long as the office itself remains in existence.
Id.—Power to Abolish Municipal Office.—A municipal office created by the legislature cannot be directly or indirectly abolished by the city.
Id.—Action by Municipal Officer For Salary—Mandamus—Election of Remedy.—A municipal officer is not required to proceed by writ of mandate to compel the payment of his salary; but he may elect to bring an action against' the municipal corporation for the amount of the salary claimed by him.
Harrison, J. The plaintiff was elected to the office of city assessor of the defendant on the 13th of April, 1891, and entered upon the duties of his office April 20,1891. Previous to his election, viz., March 16,1891, the salary of that office had been fixed by an ordinance of the city at three hundred and seventy-five dollars per year, payable one-half thereof on the first Monday of July, and one-half thereof on the first Monday of September. March 2, 1891, the legislature passed an act (Stats, of 1891, p. 22) providing that in cities in this state, excepting municipal corporations of the first, second, third, and fourth classes, and cities operating under a freeholders’ charter, the assessment of property made by the county assessor might be made the basis of municipal taxation. The act, however, contained the following proviso: “Provided, however, that the provisions of this act shall not apply to or be in force in any city or municipal corporation until its board of trustees, common council, or other legislative body shall have passed an ordinance electing to avail itself of the provisions of this act, and filed a certified copy of the same with the auditor of the county in which such municipal corporation or city is situated on or before the first Monday in March of each year.” The defendant is a municipal corporation of the fifth class, and on February 15,1892, through its board of trustees, passed an ordinance electing to avail itself of the provisions of the above act, and by the same ordinance repealed its former ordinance fixing the compensation of the city assessor. A copy of this ordinance was filed with the county auditor of Orange county, in which the city of Santa Ana is situated, on February 23, 1892. March 21, 1892, the defendant passed an ordinance repealing a prior ordinance providing for a street poll tax; .so that all of the duties imposed upon the assessor by virtue of any city ordinance were taken away. After [665]the passage of these ordinances the plaintiff performed no duty as city assessor, except to make out the list of male persons over the age of twenty-one years residing within the limits of the city, required by section 787 of the municipal government act. The defendant refused to allow or pay to the plaintiff any salary for the second year of his incumbency of the office, and he thereupon brought this action. Judgment was rendered in his favor, and the defendant has appealed directly upon the judgment-roll, including a bill of exceptions.
1. The objection that the court had no jurisdiction in the matter, for the reason that the writ of mandate was the proper remedy, was properly disregarded. Even though it should be conceded that the plaintiff might have sought relief through a writ of mandate, he was also entitled to bring an action for the amount claimed by him.
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