Millard v. County of Kern

GRAY, C. The action was brought to recover from defendant. county four hundred and five dollars alleged to be due plaintiff as justice of the peace on one hundred and thirty-five criminal actions and proceedings heard before him during the month of September, 1903. The plaintiff had judgment for the amount claimed, and the defendant county appeals therefrom. 1. Appellant’s first contention is, that the complaint fails to show that the claim was presented twice to the board of supervisors, and is therefore defective. It appears that the claim was wholly rejected on its first and only presentation to the board. It was therefore unnecessary to present it again. (San Diego v. Riverside, 125 Cal. 499, [58 Pac. 81].) 2. The vital question in the case relates to the constitutionality of the County Government Act of 1897 as amended *684 in 1901. In 1897 (Stats. 1897, p. 536) it was provided that justices of the peace in Kern County in townships having a population of four thousand should receive a monthly salary of one hundred and twenty-five dollars in full compensation of all services in both civil and criminal cases. Under the-same section justices of the peace in townships of less than' four thousand inhabitants were to receive the “fees as are now or may héreafter be allowed by law.” In townships of from nine hundred to four thousand inhabitants it was provided that a. justice of the peace should receive not more than one hundred dollars in one month for work in criminal eases. In other townships they were to receive three dollars in each •criminal case not exceeding forty dollars in any one month. In 1901 (Stats. 1901, p. 749) the townships of Kern County were classified “for the purpose of regulating the salaries of' justices of the peace and constables.” This was intended as an amendment to the act of 1897 above referred to. Under the provisions of the act of 1897 as amended by the classification of townships in 1901, the township in which plaintiff was a justice of the peace was of the first class, which by the amendment was raised to a population of five thousand and upwards, and the total compensation of the said justice by the terms of the statute was to be a fixed salary of one hundred and twenty-five dollars per month. We are of opinion, however, that the act as amended in 1901 does not regulate the compensation of justices of the peace “in proportion to-duties,” and is therefore in conflict with the constitution. The late case of Tucker v. Barnum, 144 Cal. 266, [77 Pac. 919], is decisive of the question before us, and we quote its language as applicable here: “The objection, therefore, to the section under consideration comes, not from the fact that it so classifies townships, but from the fact that within this classification there is a violation of the constitutional provision that the legislature shall regulate the compensation of all officers ‘in proportion to duties.’ If two justices of the peace in townships of different population shall each dispose of fifty criminal cases in one month, they have rendered identical service, and that one, because he is a justice in a township of a smaller population than another, shall receive less compensation for identical services than shall the other justice residing in a township of larger population, is a mani *685 fest violation of the constitutional provisions to which we have adverted. The law under consideration f Jls, therefore, not because it classifies townships by population for the purpose of regulating the compensation of township officers, but because, within the classification so made, it does not regulate the compensation ‘in proportion to duties.’ ” The law of 1897 as amended in 1901 being unconstitutional, it follows that plaintiff is still entitled to three dollars in each criminal case just as he was before the passage of that act. 3". The complaint contained the following allegation: “That on the sixth day of October, 1903, plaintiff duly presented to the board of supervisors of said county for, allowance, and filed with the clerk of said board his claim for his services performed and rendered in the said actions and proceedings as justice of the peace of said township, which said claim was duly- itemized, giving names, dates, and particular services rendered, and was by the oath of plaintiff duly verified to be correct, and that the amount claimed was then justly due and that said claim was presented within a year after the last item of the account therein set out, accrued. A copy of said claim is hereunto annexed, marked ‘Exhibit A,’ and made a part of this complaint.” There was attached to the complaint as an exhibit a copy of the duly verified itemized claim. In the foregoing allegation the complaint contained a sufficient statement of the steps taken by plaintiff in presenting his claim to the board of supervisors. The complaint stated a cause of action. We advise that the judgment be affirmed. For the reasons given in the foregoing opinion the judgment appealed from is affirmed. Henshaw, J., McFarland, J., Lorigan, J. Van Dyke, J., dissented.