McCabe v. Jefferds

HAYNES, C. Plaintiff is the public administrator of Tulare county. His term of office commenced January 7, 1895, and will expire on the first Monday in January, 1899. The defendant is the county auditor of said county, and this proceeding is prosecuted by the plaintiff to compel him to issue a warrant upon the county treasurer for eighty-three dollars and thirty-three cents, the amount the plaintiff claims to be due him for his salary as such public administrator for the month of June, 1897. Defendant demurred to the complaint, the demurrer was overruled, and defendant answered. Plaintiff moved for judgment upon the pleadings, his motion was granted, and from the judgment granting a peremptory writ of mandate the defendant appeals.

Under the classification of counties by the County Government Act of 1893 (Stats. 1893, sec. 162, p. 384), Tulare was a county of the eleventh class, and the compensation of the public [303]administrator in counties of that class was “such fee as the now or may hereafter be allowed by law.”

Under the County Government Act, approved April 1, 1897 (Stats. 1897, p. 452), a new classification of counties was made, whereby Tulare county constituted the thirteenth class, and the compensation of the public administrator was therein declared to be (as before) “such fees as are now or may be hereafter allowed by law” (Stats. 1897, sec. 170, subd. 10, p. 522); and by the last clause of said section it was provided: “This section shall take effect immediately.”

The concluding sections of the act (page 577) are as follows:

“Sec. 232. All acts and parts of acts inconsistent with this act are hereby repealed.

“Sec. 233. The provisions of sections 158 to 214, inclusive, of this act, so far as they change the compensation of any officer therein named, heretofore paid a fixed salary, or heretofore paid a fixed salary and commissions, and not fees or per diem, shall not affect incumbents, unless otherwise provided in any of said sections.

“Sec. 234. This act, except as otherwise herein provided, shall take effect and be in force sixty days from and after its passage.”

Respondent contends that the legislature, by section 170, attempted to provide for the salaries of officers of the thirteenth class, but failed to do so, and that therefore the officers of Tulare county are entitled to the salaries provided for officers of counties of the thirteenth class by section 175 of the County Government Act of 1893, which was for the “public administrator one thousand dollars per annum.” (Stats. 1893, p. 421.) His demand in this proceeding is based upon the theory that he is now entitled to that salary instead of compensation by fees as provided in the act of 1897.