I concur in the judgment. While I am entirely satisfied that under the existing law no justice of the supreme court now in office can receive the increase of salary provided for by the amendment to section 736 of the Political Code during the term for which he was elected, and that consequently, until January, 1907, there can be no justice of said court who will actually receive more than six thousand dollars per annum, I am not satisfied that this fact alone would bar the present justices of the district courts of appeal from receiving the increased salary, if the act increasing the salary had gone into effect prior to their appointment, and prior to the commencement of the term for which they were appointed. If the amendment to section 736 of the Political Code is a valid enactment at all, it undoubtedly *Page 78 fixes the legal salary of justices of this court at eight thousand dollars per annum, and the mere fact that other provisions preclude any present member of this court from receiving the increase during his term does not make it any the less true that eight thousand dollars is the salary fixed by law for justices of the supreme court. The constitution provides that the salaries of justices of the district courts of appeal "shall be the same as those of justices of the supreme court," and it may well be contended that by virtue of this provision any justice of the district court of appeal, elected or appointed after the taking effect of the amendment, and whose term of office commences after such taking effect, would be entitled to receive the legal salary fixed thereby — in other words, that such amendment acts equally and uniformly upon justices of the supreme court and justices of the district courts of appeal, and applies to all justices of either court who are elected or appointed for a new term after the amendatory act became a law. I am, however, fully satisfied that the term for which the present justices of the district courts of appeal were appointed commenced with the adoption of the constitutional amendment, and therefore before the act increasing the salaries was enacted by the legislature. The constitution prohibiting an increase of salary during the term for which they were appointed, legislation subsequent to the commencement of the term could not affect them.
I am also satisfied that inasmuch as the law fixing the salary did not take effect until after the justices were actually appointed by the governor, it could not operate to affect them. The salary fixed by law at the time of their appointment was only six thousand dollars, and this could not be subsequently increased as to them, except by constitutional amendment.
I concur in all that is said in the opinion as to these two grounds, and therefore concur in the judgment denying the petition for a writ of mandate.