PULCIFER v. ALAMEDA COUNTY (1946)

This is an appeal by the justices of the peace of Alameda County and the representative of a deceased justice from a judgment of dismissal following an order sustaining a demurrer to an amended petition for a writ of mandate to compel the supervisors of the county to pay increased salaries for the term commencing January 1, 1943, the salaries having been fixed by ordinance on May 28, 1942.

Section 12, subd. (b), of the charter of the County of Alameda, Stats. 1927, pp. 2032, 2033, provides: ‘It shall be the duty of the Board of Supervisors: * * * To provide, by ordinance, for the compensation of elective and appointive officers, assistants, deputies, clerks, attaches and employees unless such compensation is otherwise fixed by this Charter. The compensation of elective officers shall be fixed at least six months prior to the election of such officer. The compensation of elective officers shall not be increased or diminished after the election of such officer or during his term of office: provided, however, that the Board of Supervisors may allow such additional deputies or assistants as may be necessary and proper, to elective and appointive officers during their terms of office, and that the Board of Supervisors may also increase the compensation of such deputies or assistants during the term of office of such officers.’ (Italics added)

The Alameda County charter was framed in accordance with art. XI, sec. 7 1/212, of the Constitution of the State of California. Appellants contend that the italicized portion of the above quoted section of the charter is unconstitutional as contravening art. XI, sec. 9 of the Constitution. At the time of the ratification of the charter in 1926, art. XI, sec. 9, read: ‘The compensation of any city, county, town or municipal officer shall not be increased after his election or during his term of office.’ (Note that the provision applies to increases only—not to decreases.) The respondents make two contentions in respect to the effect of art. XI, sec. 9, of the charter provision. First, they contend that the amendment to sec. 5 of art. XI, and the repeal of sec. 9, art. XI in 1933, validated the charter provision in the event it was unconstitutional. The amendment to sec. 5 after incorporating the above-quoted provisions of sec. 9, art. XI, contains the following: ‘The provisions of this section shall not be construed to abridge, modify or otherwise affect the provisions of sections 7 1/212, 7 1/212a and 8 1/212 of this article, relating to county or city and county charters.’

If that portion of the charter provision requiring that the salaries of officers be fixed six months prior to their election was void as in conflict with the self-executing provision in sec. 9, the subsequent amendment in 1933 could not breathe additional life into the provisions of a charter which was approved in 1927. It is clear that such charter provision is to be treated as any other legislative enactment. By the terms of sec. 7 1/212, it must be framed ‘consistent with and subject to the Constitution.’ The validity of the charter provision must be tested by the Constitution as it read in 1928. ‘An after-acquired power cannot, ex proprio vigore, validate a statute void when enacted. See Sutherland, Stat.Constr. (2d Ed.) vol. 1, § 107.’ Newberry v. United States, 256 U.S. 232, 254, 41 S.Ct. 469, 65 L.Ed. 913, 920; see, also, State ex rel. Stevenson v. Tufly, 20 Nev. 427, 22 P. 1054, 19 Am.St.Rep. 374; Comstock Mill & Min. Co. v. Allen, 21 Nev. 325, 31 P. 434, 435; State v. O'Malley, 342 Mo. 641, 117 S.W.2d 319, 324. ‘If void from the beginning, the amendment to section 6, art. 11 [of the constitution] in 1896, did not give life to such provisions. That would give the amendment the effect of enacting laws instead of merely authorizing the legislature to do so, and it would be to enact a law to which no reference was made, and which the people in adopting the amendment could not have had in mind. Such is not the ordinary function of a constitutional provision, and such effect will not be given to it unless it is expressly so provided.’ Banaz v. Smith, 133 Cal. 102, 104, 65 P. 309, 310; see, also, Newberry v. United States, supra; Fleming v. Hance, 153 Cal. 162, 94 P. 620; Ex parte Sparks, 120 Cal. 395, 52 P. 715. The Banaz case has recently received consideration from the Supreme Court in Busch v. Turner, 26 Cal.2d 817, 161 P.2d 456, a petition for a writ of mandate to compel the auditor of Lake County to pay an increased salary to the incumbent district attorney under the provisions of sec. 5 of art. XI of the Constitution which provided that the constitutional provision prohibiting the increase of the compensation of county, township or municipal officers after their election or during their term of office could be suspended by the legislature for the period of the war and for one year thereafter. There is nothing said in the Busch case contrary to the conclusions reached herein.

Assuming that the exact provisions of the Constitution in effect at the time the charter was approved control the constitutionality of the charter provision, the respondents contend, secondly, that the amendment to the Constitution, adopted subsequently, indicates the intent of the framers of the original provision—that art. XI, sec. 9, was not intended to occupy the entire field with respect to times and possibilities of increases in compensation of public officers. Section 9 of art. XI of the Constitution is mandatory and not directory. It is a self-executing constitutional provision and does not require a supplemental effort by any law creating body to make it enforceable. It occupied the entire field with reference to increase in compensation of elective officers at the time of the adoption of the charter. If the framers of the Constitution desired that the compensation of a city, county, town or municipal officer should not be increased for a specified period prior to the election of such officer, it would have been an easy matter to place such additional limitation in the constitutional provision and thereby adopt a uniform method of fixing the amount of salary.

There is no law superior to the Constitution. No other law may disregard its provisions a written. Not only doing that which is prohibited, but doing that which is permitted ‘in any other manner than that prescribed,’ is invalid. 11 Am.Jur., 651, 652, § 44; Travelers' Insurance Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007, 96 A.L.R. 802. If the Constitution prescribes limitations or qualifications, no other law may require additional limitations or qualifications that may jeopardize the constitutional provisions. Uhl v. Collins, 217 Cal. 1, 17 P.2d 99, 85 A.L.R. 1370. The judicial source of power is conferred by the Constitution. The provision that the salary shall not be increased after his election or during his term of office negatively confers the right to have the salary increased prior to the election. Secs. 5, 4 and 7 1/212 of art. XI, as they stood at the time of the adoption of the charter, all indicate that sec. 9 of art. XI was meant to limit the field of legislative discretion with respect to increases in salary of public officers. It is necessary again to emphasize that sec. 9 is silent as to decreases, and, therefore, this court holds only that art. XI occupies the entire field with respect to increases in salary.

At the date the charter was approved, sec. 4 of art. XI of the Constitution provided that ‘The legislature shall establish a system of county governments, which shall be uniform throughout the state.’ Section 5 of art. XI provided in 1928, and provides now, that ‘The legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of * * * county, township, and municipal officers * * *.’ The same section now provides that the ‘compensation of any county, township or municipal officer shall not be increased after his election or during his term of office * * *.’ Section 7 1/212, 7 1/212a, 8, 8a, 8 1/212 of the same article provide for the creation of charters and the adoption of the borough form government, etc. The Legislature, pursuant to these provisions, may establish a system of county governments and provide for township organization. These governmental units must be uniform unless the Constitution itself provides for a varied or diversified method of government particularly applicable to the locality. Such an instance appears when the Constitution itself sanctions a departure from the rule as in the case of county charter created in accordance with the provisions of secs. 7 1/212 and 7 1/212a of the same article. The charter directs the board of supervisors to fix the compensation of justices of the peace ‘consistent with and subject to the constitution.’ Sec. 7 1/212, subd. 3. A charter may impose duties upon officers in addition to those prescribed by general laws that are not inconsistent with constitutional provisions. Wilkinson v. Lund, 102 Cal.App. 767, 283 P. 385. Ordinarily a charter which must receive state legislative approval may not be more inclusive in its provisions than a constitutional limitation. 5 Cal.Jur., p. 570, sec. 16.

Respondents urge that the following cases support the conclusion that the charter provision is valid: Chesney v. Byram, 15 Cal.2d 460, 101 P.2d 1106; Kaysser v. McNaughton, 6 Cal.2d 248, 57 P.2d 927, and a few others cited of less importance. In the Chesney case the constitutional provision in question was self-executing. Section 1 1/414 of art. XIII of the Constitution of California provides certain tax exemptions for those who have served in military, etc. service in the time of war. Section 3612 of the Political Code provided for the method of obtaining the exemption as a matter of convenience and protection of veterans and assessors. The prescribed method did not abridge or extend the self-executing constitutional provision. In the present case the constitutional inhibition forbidding the raise in salary was extended in time beyond that period provided for in the constitution, which extension is inconsistent with the constitutional provision. In the Kaysser v. McNaughton case, supra, 6 Cal.2d at pages 254, 255, 57 P.2d at page 930, the court merely said: ‘This conclusion follows from several different premises. In the first place, there is no prohibition in the Constitution, nor is there any general principle of law, which would prevent the Legislature from passing a statute imposing the same liability as is imposed by a self-executing provision of the Constitution, so long as the statute is consistent with the Constitution.’ The provision of the Alameda charter is not a duplication of the constitutional prohibition. Boyarsky v. Ross, 123 Cal.App. 267, 11 P.2d 641, had reference to a clerk in a justices' court of Oakland township in Alameda County, one of the townships involved in the present proceeding. The opinion states (123 Cal.App. at pages 268, 269, 11 P.2d at page 642): “The sole question presented for determination is whether the power of fixing the number and compensation of justices' deputy clerks, of the justice's court of Oakland township, county of Alameda, rests with the board of supervisors of that county or with the legislature of the state of California.” The court there held (123 Cal.App. at page 275, 11 P.2d at page 645): ‘When a charter is involved, general enactments are specially limited by construction in such manner as to protect the charter. Wood v. Board of Election Com'rs, 58 Cal. 561, 564. Therefore the petitioner has obtained no rights under section 11a of article 6 of the Constitution or the statutes enacted thereunder. That he has no rights under general laws enacted under stated in 4 and 5 of article 11 is expressly stated in section 7 1/212 of article 11.’ The attention of the court was called specifically to sec. 7 1/212 of art. XI, but there is no mention of sec. 9 of art. XI. The point raised here was not raised in the Boyarsky case. In McAuliffe v. Kane, 54 Cal.App.2d 288, 291, 128 P.2d 932, 934, it was said: ‘The state Constitution and the Charter of the county of San Mateo prohibit any increase in the salary of a township officer after he is elected and during his term of office.’ The opinion shows that sec. 9 of art. XI could not have been considered. At page 289 of 54 Cal.App.2d, at page 933 of 128 P.2d, the court said: ‘The facts are not disputed, and for all the purposes of the appeal may be stated as follows: San Mateo County is governed by a freeholders' charter, adopted pursuant to section 7 1/212 of article XI of the state Constitution.’ Cornell v. Harrris, 15 Cal.App.2d 144, 59 P.2d 570, also cited by respondents, involved a charter provision providing a plan for civil service administration. Art. XI, sec. 9, is not mentioned in the opinion. None of the cases cited by respondents are controlling on the particular point involved on this appeal. A case not cited is Cline v. Lewis, 175 Cal. 315, 165 P. 915, which enforced a ninety day provision in the Los Angeles County charter similar to the one here involved. In that case, although art. XI, sec. 9, was mentioned, it was not claimed that art. XI, sec. 9, was controlling. On the contrary, the opinion was written upon the assumption that (175 Cal. page 317, 165 P. at page 916): “The authority for county charters is derived from section 7 1/212, article 11, of the state Constitution” and that the charter provision controlled the facts.

Standing against the position that respondents take, it has been held that the Constitution, art. XI, sec. 9, prohibiting increases of salary after election or during the term, permits the Legislature to make any increase applicable to future terms. In the present case the provision in the charter purporting to abridge such right is unconstitutional. Self government by charter must be consistent with the Constitution at the time of the approval and ratification of the charter. County governments should be uniform except where the Legislature sanctions a departure as in the instance of the adoption of charters ‘in accordance with the provisions of sections 7 1/212 or 7 1/212 a of article 11 of the Constitution.’ Coulter v. Pool, 187 Cal. 190, 201 P. 120, 124.

A departure from the general rule may be sanctioned when the constitutional rule, covering the period in question, is abrogated or suspended. In Busch v. Turner, supra, the applicability of a constitutional provision in effect at the time of the approval or ratification of a charter was not involved, but the case indicates the broad view to be applied to the war period legislation in reference to compensation of county, township and municipal officers. The court said (26 Cal.2d at page ——, 161 P.2d at page 458): ‘A statute purporting, in general terms, to increase salaries would ordinarily be construed to include incumbents, and but for the constitutional bar it would do so. When the prohibition of the Constitution ceases to operate, there is no longer any reason to limit the statute, and its literal meaning may be carried out in full. The reason why the prohibition ceases to operate is entirely immaterial, whether it is because of expiration of the period designated in the Constitution or because of an amendment changing the Constitution. We hold, therefore, that the 1943 act increasing the salary of the District Attorney of Lake County was intended to take effect as soon as it lawfully could, including the contingency of a constitutional amendment permitting an operative date earlier than would have been permissible under the Constitution as it existed in 1943.’ (Italics added)

Assuming that the county charter could provide a restriction supplementing the constitutional provision in art. XI, sec. 9, such restriction must be reasonable. The ordinance provides that the compensation of elective officers shall be fixed at least six months prior to the election of such officers. Assuming that an office should be created by the Constitution or by legislative enactment or by the will of the people of a specific area, in the form of a charter provision which would permit the supervisors to fix the compensation for the office, if the supervisors neglected to fix the compensation at least six months prior to an election, the officer would be without compensation. It is a well known fact that township elections are generally held in August, Elections Code, sec. 951, and November, Election Code, sec. 950. Municipal preliminary budgets enumerating salaries are generally fixed within a reasonable but short period before the beginning of a fiscal year in July, sec. 57, Alameda County charter, and the passage of the annual appropriation ordinance in September, sec. 52, Alameda County charter. Under the budget arrangement as provided in the present charter, the six months would necessarily grow into a period of approximately fifteen months or more. In other words, the ordinance would have to be passed fifteen months before the officer should take office. It is possible that a special ordinance fixing compensation might be passed during some other period and the salary taken from a special or general fund. Sec. 55, Alameda County charter. In the present case the compensation was fixed by ordinance on May 28, and the primary election held on August 25th. The general election is in the early part of November. If the ordinance had been passed in the early part of May in a township of two justices of the peace, if one had been elected at the primary in August he would not be entitled under respondents' theory to the compensation fixed, whereas the other candidate, if he was forced to run not only in the primary but also in the general election, might be entitled to the increased compensation. Harrison v. Colgan, 148 Cal. 69, 82 P. 674; California Constitution, art. VI, sec. 17.

The ordinance is not only in conflict with sec. 9 of art. XI of the Constitution, but the charter provision selects an arbitrary date that is unreasonable in its application. Section 9 is in the form of a prohibition. When the language is prohibitory it is self-executing. Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3. As to the right of legislative bodies to legislate against a constitutional provision, see People ex rel. Benwell v. Foutz, Cal., 162 P.2d 1.

In view of the conclusion reached it is not necessary to consider additional points raised by appellants.

The judgment is reversed.

WARD, Justice.

PETERS, P. J., and SCHOTTKY, Justice pro tem., concur.