Mandamus. Plaintiff is a justice of the peace of the fifth judicial township of Fresno County, and seeks a writ of mandate commanding the defendant, as auditor of said county, to allow his claim for the sum of one hundred and twenty dollars, being his alleged compensation for trying forty criminal cases during the month of March, 1903, at the rate of three dollars for each case. The writ was granted and defendant appeals.
The court found that there are thirteen judicial townships in the county, and that the fifth township has a population not to exceed 3,500, and that the county belongs to the seventh class; that the plaintiff during the month of March, 1903, disposed of forty criminal actions which had been commenced in his court; that he was entitled to fees in the sum of one hundred and twenty dollars for said services; that defendant allowed the claim for ninety dollars and refused to allow any greater sum.
Appellant contends that plaintiff's claim is not a proper legal charge for any greater sum than ninety dollars, as provided by subdivision 13 of section 164 (Stats. 1901, p. 712), amending the County Government Act of 1897, subdivision 13 of section 166 (Stats. 1897, p. 515), by which latter act justices of the peace were given "the fees allowed by law."
A general fee bill (Stats. 1895, p. 267) fixed the compensation of justices of the peace throughout the state: "For all services in a criminal action or proceeding, whether on examination or trial, three dollars," but limiting the total fees *Page 268 to seventy-five dollars in any one month in misdemeanor cases. (Stats. 1895, p. 272.) This act was considered in Dwyer v.Parker, 115 Cal. 544, the effect of the decision being to leave in force the fee bill established by the act, but removing therefrom the limitation attempted to be fixed upon the amount of fees the justice might retain; and this act thereafter fixed the compensation of justices of the peace up to the time the County Government Act of 1901 went into effect, amending the act of 1897, which later act, as already stated, provided that in counties of the ninth class (to which Fresno County then belonged) justices should receive "the fees allowed by law," which was the compensation fixed by the act of 1895. The act of 1901 provides in the fee bill of counties of the seventh class, to which Fresno County then belonged, as follows: "Justices of the peace, the fees provided by law; provided, that in townships of 6,000 population or more, any or all charges in criminal cases shall not exceed one hundred and forty dollars per month for any justice or other officer exercising the judicial functions of justice of the peace. They shall receive the fees allowed by law in civil cases. In townships having a population of less than 6,000, they shall receive fees allowed by law not to exceed ninety dollars per month for criminal cases. They shall receive the fees allowed by law in civil cases." The act of 1897, as amended in 1901, classifies the counties of the state by population for the purpose of regulating the compensation of the officers, and to this no objection is made. (Stats. 1901, pp. 685-687 et seq.) But it is argued by plaintiff that section 164 of the act of 1901 (p. 712, subd. 13) goes further than is warranted by the constitution and "subdivides the class for the purpose of fixing the fees of township officers of Fresno County and places a limitation on the earnings of some of the justices not placed upon others. The legislature has attempted to regulate the compensation of the township officers not simply according to their duties, as ascertained by a classification of counties by population, but in accordance with the population of the several townships within the county," the effect of which is to allow a justice of the peace in one of the classified townships one hundred and forty dollars for performing certain services in criminal cases, and to another justice of the peace in another township ninety dollars for performing precisely *Page 269 similar services. It will be observed, too, that the act gives the justices all the fees in civil cases regardless of population. The claim that the act of 1901 is void in its entirety is not insisted upon, the question being otherwise settled in Beach v. Von Detten, 139 Cal. 462. It is, however, contended by plaintiff that the provisions of the act in question violate section 11 of article I of the constitution; that "all laws of a general nature shall have a uniform operation"; also section 25 of article IV, that "The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: . . . Twenty-ninth — Affecting the fees or salary of any officer. . . . Thirty-third — In all other cases where a general law can be made applicable"; also, section 5 of article XI, that "The legislature, by general and uniform laws, shall provide for the election or appointment in the several counties of boards of supervisors, sheriffs, county clerks, district attorneys, and such other county, township, and municipal officers as public convenience may require, and shall prescribe their duties and fix their terms of office. It shall regulate the compensation of all such officers in proportion to duties, and for this purpose may classify the counties by population. . . ."
We think respondent's objection to subdivision 13 of section 164 of the act under consideration is well founded. It is recognized — indeed, it has been said that the conviction is irresistible — that the constitution has prescribed a single mode which must be adopted in fixing the compensation of officers of counties, and that mode is to adjust the compensation in accordance with their respective duties under a classification of counties by population, made for this purpose. (Dwyer v. Parker,115 Cal. 544.) Since, within the view of the framers of the constitution, this was the proper mode for fixing the compensation of county officers, if there be no constitutional inhibition to the contrary, no reason can be perceived why a like method of classification of townships should be other than proper. And, notwithstanding the dictum in Sanchez v. Fordyce,141 Cal. 427, we can discover no such inhibition in the constitution. By the constitution the legislature is required to fix the compensation of county officers in a particular mode, but the method of fixing the compensation of township officers is left optional with it — the exercise of its choice of modes, however, being limited by the general constitutional *Page 270 provisions above quoted. The constitution declares that the legislature shall regulate the compensation of township as well as of county officers in proportion to their duties, and for this purpose may (must) classify the counties by population. That the legislature may adopt the same scheme made applicable to counties and classify townships by population for the same purpose would seem to be not only permissible, but a course even suggested by this language. So long as the legislature sees fit to compensate township officers for services performed under the system of fees, no occasion for such classification of townships by population need arise, but when the legislature undertakes to salary such township officers it is difficult to perceive how this can fairly be done within the requirements of the constitution, if it were not permissible so to classify townships.
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 manifest violation of the constitutional provisions to which we have adverted.
The law under consideration falls, 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."
For this reason the judgment appealed from is affirmed.
McFarland, J., and Lorigan, J., concurred.
Van Dyke, J., and Beatty, C.J., dissented.