WILSON v. WALTERS (1941)

From an order releasing from garnishment the salary of defendant as a Municipal Judge of the city of Los Angeles, plaintiff appeals.

The essential facts are:

In May, 1940, plaintiff levied a garnishment upon a sum of money due defendant as salary for acting as judge of the Municipal Court of the city of Los Angeles. July 19, 1940, pursuant to a motion of defendant, the trial court made an order releasing the garnishment on the ground that defendant's salary as municipal judge was not subject to garnishment, pursuant to the provisions of section 710 of the Code of Civil Procedure.

This is the sole question necessary for us to determine:

Is a judge of the Municipal Court of the City of Los Angeles a constitutional officer of the State of California?

This question must be answered in the affirmative. Constitutional officers are persons who duly occupy by appointment or election constitutional offices. A constitutional office as distinguished from a municipal or legislative office is one created or provided for by the Constitution (People v. Scheu, 60 App.Div. 592, 69 N.Y.S. 597, 599; Gamble v. Utley, 86 Cal.App. 414, 420, 260 P. 930; see, also, vol. 2, McQuillan's Municipal Corporations [1939] 2d Ed. revised, 499, sec. 434). The Municipal Court of the city of Los Angeles is a court created and provided for by the Constitution of the state of California (art. VI, sec. 11, Const. of the State of Calif.; Burge v. Municipal Court, 84 Cal.App. 425, 426, 258 P. 164; Simpson v. Payne, 79 Cal.App. 780, 785, 251 P. 324; Chambers v. Terry, 40 Cal.App.2d 153, 155, 104 P.2d 663).

In addition to the foregoing authorities it is interesting to note that as early as 1897 our Supreme Court stated in Church v. Colgan, 117 Cal. 685, 687, 50 P. 12, “There is no such office as a constitutional judge as contradistinguished from a legislative judge. Both are provided for by the constitution, and in that sense are constitutional officers.”

Since defendant is a duly elected and qualified judge of the Municipal Court of the city of Los Angeles, which court was created by the Constitution of the state of California, he is a constitutional officer, and, since it is established that the salary of a constitutional officer appertaining to such office is not subject to garnishment, pursuant to section 710 of the Code of Civil Procedure (Gamble v. Utley, supra, 86 Cal.App. at page 420, 260 P. 930), the trial court's order was correct.

Lawson v. Lawson, 158 Cal. 446, 111 P. 354, applies to justices of the peace and is, therefore, clearly distinguishable from the present case, because justices of the peace and police courts are inferior courts which may be created by the legislature without constitutional amendment. However, it was necessary to have an amendment to the state Constitution to create a municipal court (see Simpson v. Payne, supra, 79 Cal.App. at page 785, 251 P. 324).

The order is affirmed.

McCOMB, Justice.

We concur: MOORE, P. J.; WOOD, J.