Sorey v. Board of Supervisors

EDMONDS, J., pro tem. By this proceeding petitioner seeks judicial determination that his salary as justice of the peace of El Monte Township should be at the rate fixed by an ordinance of the Board of Supervisors of Los Angeles County for townships having over 30,000 population. The trial court sustained, without leave to amend, a demurrer of the Board of Supervisors to his petition for a writ of mandate, and this appeal is prosecuted from the judgment subsequently entered.

Appellant was elected at the general election in 1934 for the term commencing January 7, 1935. The salary of the office as fixed by an ordinance of the Board of Supervisors effective January 1, 1935, is $175 per month. The ordinance, however, provides that in the event it shall be determined that any of certain townships, including El Monte, “shall have a population of 30,000 or more, either by the United States Census of 1930 or by judicial determination, other than by a justice court, or by the application of any method which may now or hereafter be provided by law for the determination of the population of said townships, then and in that event and commencing with the final and official proclamation or determination of the fact of the population of said townships under either or any of said methods for the determination thereof, the salary of the justice of the peace of any such township shall be $350 per month instead of the salary above specified”. Appellant does not claim that the township had the required population of 30,000 by the census of 1930, or that there has been any other determination, of its population. However, he alleges that on January 10, 1935, the township had a population in excess of 30,000. Upon such allegation he contends that the Board of Supervisors may be required by writ of mandate to determine the population. This determination must be made, according to appellant, either by computation as provided by section 110a of the Code of Civil Procedure, or by a census to be taken under the provisions of section 4055 of the Political Code.

[317]The question of the jurisdiction of the Justice’s Court of El Monte Township was before the Supreme Court in the ease of Shea v. Kerr, 1 Cal. (2d) 604 [36 Pac. (2d) 189]. That ease was a proceeding in mandamus to compel the registrar of voters of Los Angeles County to omit from the ballot to be used at the ensuing general election, the name of the appellant here as a candidate for justice of the peace of El Monte Township. It was claimed in that proceeding that El Monte Township had a population exceeding 30,000,. and that appellant here, not being admitted to the practice of law, was ineligible for election to that office under the provisions of section 4185a of the Political Code and section 159a of the Code of Civil Procedure. The court said: “No determination of the population of El Monte township as heretofore made or as now constituted was made by this court prior to January 1, 1931, or at all. As stated, the 1930 federal census shows the population of the three townships now comprising El Monte township to be 26,634. This is the only authoritative determination of the population of said township and under it the justice’s court therein is of class B. Any concession or stipulation of counsel as to actual population is of no controlling significance when, as here, jurisdiction of a court is involved and has been established in the manner provided by law.”