I dissent. If the dismissal of this proceeding was based upon the ground that the affirmance of the judgment in the case ofPeople v. Campbell, ante, p. 11, puts the right of petitioner to receive his salary during the pendency of that appeal into the category of moot questions, I should have nothing to say. Since it is agreed on all sides that a final judgment confirming petitioner's title to the office will enable him to collect his back salary in full as soon as he could collect it by means of a peremptory writ issued in this case, it is of no practical consequence to these parties how the question originally involved may be decided. But since the court has undertaken to construe the law, and so to make a precedent for future cases, I desire to indicate very briefly the reasons why, in my opinion, that construction is unwarranted.
The right of the public officers of this state to receive their salaries at stated periods is not derived from section 936 of the Political Code. By various provisions of the general laws of the state the amount and mode and manner of payment of all salaries are fixed and established. In the case of the judges of the superior court, the payment of their salaries is provided for in the constitution itself. (Art. VI, sec. 17.) In this section of the constitution we find a provision with respect to this office which is merely an example of the general rule as to all offices, — viz., that at stated times during their continuance in office the incumbents are to receive the compensation previously fixed by law.
To this general rule section 936 of the Political Code is the exception, and unless this petitioner came within the exception he was entitled to be paid under the rule.
Now, section 936 may be construed in either of two ways: It may be subjected to a strict and narrow and literal construction, or it may be accorded the liberal construction that is *Page 38 usually placed upon remedial laws — a construction which will advance the remedy in accordance with the purpose of the legislature. We may do one thing or the other, but whichever rule we adopt it should be equally applied to every part of the section. We have no right to be liberal as to one clause and strict as to the other. This, however, is what, in my opinion, the court has done. In construing the proviso it has held that the petitioner is not within its terms because his muniment of title — the judgment in the quo warranto case — is not a certificate of election or commission of office, and this largely upon the ground that it is not something tangible that he can "hold." It would seem that this part of the argument might be met by the suggestion that he could "hold" a certified copy of the judgment if its existence of record is not enough. But aside from this, and admitting the validity of the argument, it is clear that the decision goes to the extreme limit of strictness of construction. Suppose the same rule of construction is applied to that part of the section which precedes the proviso. In its strict terms it does not apply to petitioner at all. When the action of People ex. rel. Bledsoe v. Campbell was commenced he was not the "incumbent" of the office; Judge Campbell was, and by the terms of the statute it was only "his" (Campbell's) salary that was stopped. The section exhausted its force upon Campbell, and when Bledsoe came in, in pursuance of the judgment, not being within the terms of section 936, — the exception, — he was entitled to be paid under the rule.
All this is said, however, merely to show that a consistent application of the strict rule to all parts of the section would exempt the petitioner from its operation and give him the benefit of the general rule under which the salaries of all superior judges are payable monthly.
In my own opinion, the whole section, and especially the proviso, remedial as it is conceded to be, calls for a liberal and not a narrow construction, and since petitioner immediately after the judgment in Bledsoe v. Campbell became an "incumbent" of the office, and since Bennett, by his intervention and appeal, was contesting his right, I should hold that from and after that time he was affected by the first part of the section, but upon the same rule of construction I should hold that he also came within the proviso. That he was discharging *Page 39 the duties of the office is not questioned, and the only objection is that he had no certificate of election or commission of office. I attach no importance to the fact that his muniment of title — the judgment — was not a thing which he could hold in manual possession. The only question to be considered is whether it was the legal equivalent of a certificate or commission. That it was such equivalent is to my mind perfectly clear. Bledsoe, the petitioner here, claiming to be the de jure officer, went into the office under and by virtue of the judgment in the quo warranto case, a judgment entered in pursuance of section 806 of the Code of Civil Procedure, which reads as follows: "If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he will be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office." The plain and obvious meaning of this section is, that the entry of judgment in his favor superseded the necessity of any other certificate or commission. It was itself all that a certificate or commission could be or ever is, — viz., evidence of title to the office. Lacking only the outward form and the name, it was in substance all the law required, and it is the substance, not the form or name of a thing, which should be regarded in applying a remedial statute.