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[Sac. No. 445. In Bank. September 17, 1897.]

J. J. MCKINNON, Respondent, v. CHARLES E. LEONARD, et al., composing Board of Trustees and ex officio Board of Election Commissioners of Sacramento, Appellants.

ELECTIONS-ACT OF MARCH 13, 1897.-The act of March 13, 1897, providing for general primary elections, does not apply to municipal elections to be held in the year 1897, for the reason that by its terms the machinery provided for the holding of such primary elections is not to be set in operation until January, 1898, when under section 5 the election commissioners are to select the names of those electors who are to act as officers of the primary election boards.

APPEAL from a judgment of the Superior Court of Sacramento County. Joseph W. Hughes, Judge.

The facts are stated in the opinion of the court.
Robert T. & William H. Devlin, for Appellants.

L. T. Hatfield, for Respondent.

THE COURT.-Action in mandate to compel the trustees of the city of Sacramento, as the election commission of that city, to proceed under the provisions of an act of the legislature of March 13, 1897, providing for general primary elections, etc. (Stats. 1897, p. 115), to hold a primary election for the selection of delegates to conventions of the various political parties which shall select candidates for the municipal officers to be voted for at the ensuing city election. The mandate was awarded, and the trustees appeal.

The urgency of the case demands an immediate decision, and this prevents a detailed consideration of the questions presented. However, upon the principal proposition argued, one which is determinative of this appeal, we are of opinion that the act does not apply to municipal elections to be held in the current year, for the reason that by its terms the machinery provided for the holding of such primary elections is not to be set in operation until the month of January, 1898, when, under section 5, the election commissioners are to select the names of those electors who are to act as officers of the primary election boards. No other section of the act to which our attention has been directed makes different provision as to cities.

For the purposes of this case, therefore, no other question need be considered, and no other is determined.

The judgment is reversed, with directions to the trial court to enter judgment for the trustees.

[Sac. Nos. 92, 181, 214. In Bank.-September 17, 1897.]

TULARE COUNTY, Appellant, v. E. A. MAY, et al., Respondents. TULARE COUNTY, Appellant, v. E. M. JEFFERDS, et al., Respondents. GUY GILMER, et al., Respondents, v. E. M. JEFFERDS, Defendant. COUNTY, Intervenor, Appellant.

TULARE

COUNTIES-PUBLIC OFFICERS-SALARIES OF DEPUTIES-CONSTITUTIONAL LAW-ACT OF 1893.-The provisions of section 173 of the County Government Act of 1893 (Stats.. 1893, pp. 415, 416), empowering certain of the county officers in counties of the eleventh class to appoint a specified number of deputies, whose salaries are fixed by the act and made payable out of the county treasury, are not in conflict with section 11 of article 1 of the constitution, requiring all laws of a general nature to have a uniform operation, notwithstanding other provisions of the act, affecting counties of different classes, require the salaries of such deputies to be paid by their principals out of the gross sum allowed them for their compensation; nor with the various subdivisions of section 25 of article IV, forbidding the legislature to pass local or special laws in the cases enumerated therein; nor with the provisions of sections 4 and 5 of article XI, requiring the establishment of county governments, and the election or appointment of county officers, to be by general and uniform laws; nor with section 13 of the same article, prohibiting the legislature from delegating the power to make, control, appropriate, supervise, or in any way interfere with any county, city, town, or municipal improvement, money, property, or effects; nor with section 9 of article XI, forbiding any increase of compensation after election of public officers.

ID.-DEPUTY ASSESSORS.-The provisions of subdivision 21 of section 173 of such act, authorizing the assessor in counties of the eleventh class to appoint a number of deputies during the months of March, April, May, and June, at a salary of five dollars per diem, but not expressly providing for their payment by the county, should be construed as authorizing their payment out of the county treasury, in view of the provisions of section 216 of the act, as a contrary construction would necessitate the payment thereof by the assessor, out of his salary, which is fixed by the act at an amount which is entirely insufficient for such purpose.

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ID.-CREATION OF ADDITIONAL JUDGESHIP. The provisions of section 216 of the act, authorizing the appointment of one additional deputy sheriff and two additional deputy clerks in any county in which an additional judge of the superior court is provided for, is general and uniform in its operation, and applies to the whole state, and takes effect in any county whenever an additional judgeship is created therein. Such provisions are constitutional.

APPEALS from judgments of the Superior Court of Tulare County. J. R. Webb, Judge.

The facts are stated in the opinion of the court.

Lamberson & Middlecoff, and Power & Alford, for Appellant, Tulare County.

E. O. Larkins, for Appellant Jefferds.

W. B. Wallace, for Respondents.

BEATTY, C. J.-These three appeals involve one and the same principal question, viz., the constitutionality of certain provisions of the County Government Act of 1893 relating to the appointment and salaries of various deputy officers in counties of the eleventh class, in which Tulare county stands alone. The first is from a judgment dismissing a suit to enjoin the county treasurer from paying the salaries in question; the second is from a similar judgment in a suit to enjoin the county auditor from drawing salary warrants; and the third is from a judgment awarding a peremptory writ of mandate to the auditor to draw his warrants for such salaries. If the provisions referred to are constitutional, the judgment should all be affirmed; if unconstitutional, the judgment must all be reversed.

The provisions of the act governing the compensation of officers of counties of the eleventh class (Tulare county) are to be found on pages 415 and 416 of the Statutes of 1893, and are as follows:

"Sec. 173. In counties of the eleventh class the county officers shall receive as compensation for the services required of them by law, or by virtue of their office, the following salaries, to wit: 1. The county clerk, three thousand dollars per annum; 2. The sheriff, eight thousand five hundred dollars per annum, and mileage for the service of any and all process required by law to be served by him, at the rate of ten cents per

mile for every mile necessarily traveled in the performance of such duty; 3: The recorder, two thousand dollars per annum, and six cents per folio for every instrument of any character transcribed by him or his deputies, which said amounts shall be paid out of the county treasury; 4. The auditor, two thousand dollars per annum; 5. The treasurer two thousand dollars per annum; 6. The tax collector, five thousand dollars per annum; 7. The assessor, eighteen hundred dollars per annum; 8. The district attorney, two thousand four hundred dollars per annum; . . . . 11. The superintendent of schools, one thousand eight hundred dollars per annum; . . . . 17. The county clerk may appoint three deputies, who shall receive from the county a salary of one thousand and twenty dollars per annum each; 18. The district attorney may appoint one deputy, who shall receive from the county a salary of fifteen hundred dollars per annum; also, one deputy, who shall receive from the county a salary of twelve hundred dollars per annum; 19. The recorder may appoint one deputy, who shall receive from the county a salary of twelve hundred dollars per annum; 20. The superintendent of schools may appoint one deputy, who shall receive from the county a salary of one thousand and twenty dollars per annum; 21. The assessor may appoint fourteen deputies for the months of March, April, and May, at a salary of five dollars per day. He may also appoint six deputies for the month of June, at a salary of five dollars per day."

It is contended by the appellant that all of the above quoted provisions empowering the sheriff, district attorney, clerk, etc., to appoint deputies, and requiring the payment of their salaries out of the county treasury, are void because in conflict with the various clauses of the Constitution:

1. It is claimed they are in conflict with section 11 of article I, which provides that "all laws of a general nature shall have a uniform operation," the position of counsel being that the County Government Act of 1893 is a general law "prescribing the powers and duties of officers in counties (Const., art. IV, sec. 25, subd. 28), and that its uniform operation is destroyed by the exceptional privilege conferred upon the officers of fourteen classes, including the eleventh class, of appointing deputies whose salaries are to be paid out of the county treasury, while CXVIII. CAL.-20

in the remaining thirty-eight classes all deputies are to be paid by their principals out of the gross sum allowed for their compensation.

Upon the same grounds it is contended that these provisions of the County Government Act are in conflict with various subdivisions of section 25, article IV, forbidding the legislature to pass local or special laws in any of the following enumerated cases: "9. Regulating county and township business, or the election of county and township officers." 19. Granting to any corporation, association or individual any special or exclusive right, privilege or immunity." "28. Creating offices or prescribing the powers and duties of officers in counties, cities, cities and counties, townships, election or school districts." "29. Affecting the fees or salary of any officer." "33. In all other cases where a general law can be made applicable."

To sustain his position counsel for appellant cities a number of decisions of this court, but I think none of them are in point except Welsh v. Bramlett, 98 Cal. 219, and Walser v. Austin, 104 Cal. 128.

In the case of Welsh v. Bramlett, supra, I concurred in the decision and in the opinion of Justice Harrison, but I did not at the time place the construction upon that part of the opinion commencing at page 234 which upon a more careful reading I can see that it bears, and upon which it was followed by Department Two in Walser v. Austin, supra. The case of Welsh v. Bramlett, supra, was correctly decided upon the first ground discussed in the opinion of Justice Harrison-that is to say, upon the ground so fully and carefully considered in Dougherty v. Austin, 94 Cal. 601. This being so, the proposition discussed under the second head of Justice Harrison's opinion was unnecessary to the decision and for that reason no doubt received less consideration than its importance demanded. In Walser v. Austin, supra, the Department simply followed the decision of the full court in Welsh v. Bramlett, supra. There was no petition for a rehearing of that case, and the proposition involved has never received any further consideration by the full court, or either department of the court, than was given to it in Welsh v. Bamlett, supra, where, as I have said, its decision was not necessary. In the case of Farnum v. Warner, 104 Cal. 677

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