Under section 5 of article XI of the constitution the legislature is required to provide for the election or appointment in the several counties of the officers specifically mentioned and for such other county officers "as public convenience may require," and shall prescribe their duties. The same section also requires the legislature to fix the compensation of such officers "in proportion to duties." By section 4013 of the Political Code the legislature has provided in effect that public convenience requires a county surveyor, for in that section a surveyor is and for fifty years or more has been named as one of the officers of the county. His official bond is provided for in section 4022 of the Political Code. He must be a licensed surveyor. (Sec. 4214, Pol. Code.) His duties generally are defined in sections 4214 to 4221, inclusive, of the Political Code. Other duties are required of him by the legislature. (See Stats. 1905, p. 102.) Sacramento County contains some 963 square miles of territory, approximately that of the state of Rhode Island, and has a population of 150,000 or more. It seems to me a palpable absurdity to say that the constitutional mandate to fix the compensation "in proportion to duties" has been complied with in the case of the surveyor of Sacramento County when said compensation is fixed at ten dollars per month. The constitutional provision contemplates that the public officers therein provided for shall be justly compensated for their services. (Gwynn v. McKinley, 30 Cal.App. 381, 389 [159 P. 1059].) And when the legislature has, as I think here, failed to comply with the purposes of the constitution it is the duty of the court to declare the law invalid. I cannot subscribe to the statement in the main opinion that the matter of compensation is exclusively within the jurisdiction of the legislature and not *Page 739 within that of the courts. The case of De Merritt v. Weldon,154 Cal. 545 [16 Ann. Cas. 955, 98 P. 537], which is deemed to be controlling in the present case, recognizes that a limitation is placed on the legislative action to the extent that the legislature may not fix compensation so low as in reality to destroy the office. In that case the board of trustees of the city of Ukiah evidently so framed its ordinances that the same person might act as "Executive Officer" and "Marshal" at the combined salary of eighty-five dollars per month, which was by no means an inconsiderable salary for the services rendered in those days — twenty-five years ago. The petitioner therein was appointed to act in both capacities and continued so to act for several years and until the board revoked his appointment as "Executive Officer." He then complained that the ordinance fixing the salary of the marshal at ten dollars per month was invalid. From the situation there presented it could not be said that at the time the ordinances were framed it was intended to fix the salary of the marshal at so low a figure as in effect to destroy the office, for the reason that such salary combined with the salary of executive officer would be reasonable compensation for the services performed. Here we find no such situation, and in my opinion the De Merritt case should not be deemed controlling.
Rehearing denied.
Shenk, J., and Preston, J., dissented.