This is an application for a writ of mandate to compel the defendant, as auditor of San Mateo county, to draw a warrant upon the county treasurer for the payment of $66.66, claimed to be due petitioner as salary as deputy recorder of said county for the month of September, 1909. A demurrer has been interposed, to the petition; and at the argument it was conceded that the facts stated in the petition are true, and that the question for determination is a question of law as to whether or not the petition states facts sufficient to entitle petitioner to any relief.
It appears that at the November election in 1906, one J. F. Johnston was elected recorder of the county of San Mateo, and duly qualified as such. His term of office commenced on the first Monday after the first day of January, 1907. At the time he was elected, and when his term began, the law fixed his salary at $3,500 per annum, and in effect provided that such salary should be in full compensation for all services of every kind and description rendered by him, and that all deputies employed should be paid by him out of his salary (County Government Act 1905, sec. 215, [Stats. 1905, p. 582]; Pol. Code, sec. 4290). At the session of the legislature held in 1907, section 4261 of the Political Code was amended as to counties of the thirty-second class (San Mateo), by which it was provided as follows: "In counties of the thirty-second 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: . . . 3. The Recorder, $3,500 per annum, and said recorder may appoint two deputy recorders, which offices are hereby created, who shall receive a salary of $800 per annum. The deputies *Page 547 herein provided for shall be paid at the same time and in the same manner and out of the same fund as the Recorder is paid."
After the said section was so amended, and after it had gone into effect in May, 1909, the petitioner was duly appointed by Johnston deputy recorder of said county of San Mateo, and took the proper oath and qualified as such deputy recorder.
The constitution of the state, at the time said Johnston was so elected recorder, provided and ever since has provided as follows: "The compensation of any county, city, town or municipal officer shall not be increased after his election or during his term of office." The question then arises as to whether or not the amendment of 1909 to section 4261 of the Political Code increased the compensation of the county recorder of San Mateo county. When he was elected his compensation was $3,500, out of which he was required to pay all his deputies and assistants as we have before stated, and of course the net sum he received as compensation was the remainder of the $3,500 after so paying his deputies or other assistants. The law then made no provision for paying any deputy or assistant; and hence if the said recorder had been compelled to employ two deputies at a salary of $800 per year each his net compensation would have been $1,900. Now, if the legislature had added $1,600 to the $3,500, thus making his salary $5,100, after his election and during his term of office, there would be no question but that such additional compensation would be within the plain prohibition of the constitution. The legislature could not, by a plain direct act, in terms increase his salary, and this is so evident that even a layman would so declare. If such salary could not be increased directly it could not be increased indirectly; and no matter what it is called it is in effect an increase in compensation. It is as much an increase of compensation to allow to the recorder $1,600 with which to pay his deputies as it would be if he had been allowed $1,600 with which to pay his house rent or with which to purchase groceries. The case is the same in principle as Daugherty v. Austin, 94 Cal. 601, [28 P. 834, 29 P. 1092], where it was held that an order of the board of supervisors of Marin county, allowing the county clerk a deputy at a salary of $50 a month, where no *Page 548 deputy had been allowed before, was in effect an increase in compensation and void. It was there said by the chief justice: "The sum allowed to any given officer being a lump sum, out of which he must pay for the services of all deputies and assistants necessary for the prompt and faithful discharge of all the duties of the office, it is evident that his own compensation consists of the residue remaining after the payment of such deputies and assistants; and it is equally evident that just so far as the county assumes the payment of such deputies and assistants, such residue is enlarged and the compensation increased."
The above case has not been overruled, but on the contrary has been followed in all subsequent decisions to which our attention has been called (Agard v. Shaffer, 141 Cal. 725, [75 P. 343]; Humiston v. Shaffer, 145 Cal. 195, [78 P. 651]). There are cases holding that where the statute provides a fixed salary for the officer, and a fixed salary for a certain number of deputies, all payable out of the county treasury, an increase in the salary of such deputies, or a provision for extra deputies, is not within the prohibition of the constitution for the reason that in such case the state has undertaken to pay the salary of the officer, and in addition to pay the expenses of running the office, such as clerk hire, deputies and so forth (Newman v. Lester, 11 Cal.App. 577, [105 P. 785]; Tulare Co. v. May, 118 Cal. 303, [50 P. 427];Harrold v. Barnum, 8 Cal.App. 21, [96 P. 104]). In the latter case the rule laid down in Daggett v. Ford County,99 Ill. 334, is adopted, where it was held that if the statute allowed a fixed compensation as salary to the officer, and a further sum to cover the clerk hire and expenses of the office, if it was found that the sum so allowed was insufficient, such allowance might be increased; or, in other words, that the allowance for expense of clerk hire or deputies might be increased. But we have not been referred to any case that holds that where a lump sum is allowed to cover compensation and expenses, such sum can be increased.
It follows that the demurrer must be sustained, and the writ discharged.
Kerrigan, J., and Hall, J., concurred. *Page 549