Farnum v. Warner

Vancliee, C. This a proceeding by writ of mandate to compel the-defendant, as treasurer of San Luis Obispo county, to pay an auditor’s warrant in favor of plaintiff for fifty dollars, alleged to be her salary as clerk of the auditor of said county for the month of July, 1893.

The court sustained a general demurrer to the petition, and-dismissed the proceeding; and whether or not the court erred in sustaining the demurrer is the only question involved in this appeal.

C. A. Farnum was elected auditor of said county in November, 1892, and on January 10, 1893, after having qualified and entered upon the duties of that office, appointed and employed the plaintiff as his official clerk, at a salary of fifty dollars per month, which salary was paid by the treasurer, upon warrants of the auditor, for [678]the first five months after her appointment; hut payment of her warrant for July, 1893, was refused.

Section 182 of the County Government Act, as re-enacted March 31, 1891, provides: “In counties of the twentieth class the officers shall receive, as compensation for the services required of them by law or by virtue of their office, or .as ex officio officers, the following salaries, to wit: 1. County clerk, .... 2. Sheriff, . . . 3. Recorder, .... 4. Auditor, eighteen hundred dollars per annum, and one clerk at a monthly salary of not exceeding fifty dollars” (Stats. 1891, p. 374); and the county of San Luis Obispo belongs to the twentieth class.

This, though not so explicit as it might have been, means that the salary of the auditor is to be eighteen hundred dollars per annum, plus the salary of one clerk, employed by the auditor, not exceeding fifty dollars per month. It does not compel the auditor to employ a clerk, but permits him to do so, limiting the salary, however, to fifty dollars per month. So understood, the fourth subdivision of the section regulates the salary of the auditor in a manner not objectionable upon any constitutional gi-ound, whatever may be said of its wisdom or policy; and it admits of no other rational construction than that above given. The auditor needed no express authority to employ a mere clerk; and if such authority had been requisite it was clearly implied in section 61 of the same act (Stats., 1891, p. 314), which authorizes the auditor to appoint deputies (whose services may be merely clerical); and the petition shows that plaintiff was appointed and qualified in the manner prescribed by said section 61 for the appointment of deputies. It is, therefore, clear that it was not the intention of the legislature merely to authorize the employment of a clerk to be paid by the auditor from a salarjr of eighteen hundred dollars. The language of the statute clearly expresses the intention to add something to the salary of eighteen hundred dollars. What was intended to be thus added? To say that