Peairs v. Chambers , 28 Cal. App. 584 ( 1915 )

Petition for mandate. The petitioner, Honorable Howard A. Peairs, is one of the judges of the superior court in and for the county of Kern, and has held that office since a time prior to the first day of January, 1915; and prior to the nineteenth day of May, 1915, collected as such judge his salary at the rate of five thousand dollars per annum which was paid in monthly installments one-half by the county of Kern and one-half by the state, as is prescribed by law. Respondents, subsequent to the date last mentioned, refused to issue warrants in payment of the salary of petitioner in any amount other than at the rate of four thousand dollars per annum. This position was taken by respondents because of the passage and approval of an act of the legislature which apparently fixed as the annual salary of the superior judges of the county of Kern the amount of four thousand dollars. It is the contention of petitioner here that this act made no change in the amount theretofore provided to be paid on account of the salary attached to his office. The condition of the legislation affecting this subject may be briefly stated. For many years chapter V of the Political Code embraced certain sections which fixed the amounts of the salaries of the justices of the supreme court, judges of the superior court, and officers of the former court. The chapter was devoted especially to this subject. By section 737 it was provided that the annual salaries of the judges of the superior courts of some fifty counties of the state should be of certain amounts, the counties being named in the section and the respective amounts assigned to them. Section 738, which immediately followed, provided that the salaries of all of the judges of the other superior courts (meaning those not specially named in section 737) should be of one amount alike. By these two sections then, in general, the matter of the salaries of the superior judges of the entire state was completely covered; in other words, reading the two sections together, as they are intended to be read, we have a general law (general in the sense that it covers all of the counties of the state as to the matter therein legislated upon) fixing the salaries of superior judges. Section 737 of the Political Code was amended by the legislature in 1911 (Stats. 1911, p. 63), which made some changes as to the amount of the salary to be paid to superior judges of certain counties. This amendment of that section did not change the amount provided to be paid to the superior judges of Kern County, which was therein stated to be, as it had theretofore been, the sum of four thousand dollars per annum. However, later in the session of the same year (Stats. 1911, p. 1421), a special act of the legislature was passed which applied to the county of Kern alone and provided, in part, as follows: "The annual salary of each of the judges of the superior court of the state of California, in and for the county of Kern, is $5,000." This act contained a special repealing clause repealing all acts and parts of acts in conflict therewith. It was under the provisions of this act that petitioner collected his salary at the rate of five thousand dollars per annum, and makes his claim here that he is entitled to have the same amount continued to be paid to him. In the year 1915 an act of the legislature was approved on May 19th, by which it was provided that section 737 of the Political Code should be amended. In this act the section mentioned, as it stood after the amendment of 1911, was re-enacted and the only change made was in the case of Sonoma County, as to which county an increased amount was allowed to the superior judge as salary. The fact that the reference to the county of Kern as it stood in the section prior to the passage of the special act in 1911 relating to that county, was carried with and into the section as amended in 1915, furnished the basis for the contention of respondents that by the amendment of 1915 to section 737, [Stats. 1915, p. 597], the superior judges of Kern County suffered a reduction in salary to the amount which had been allowed them prior to the special act passed in 1911.

We have to determine as to whether by necessary implication the amendment of 1915, wherein section 737 was in substance re-enacted, worked a repeal of the special act which provided for a salary of five thousand dollars per annum for the superior judges of Kern County. It is important to remember that the amendatory act of 1915 contained neither a general nor a special repealing clause. We have called the enactment expressed by sections 737 and 738 of the Political Code a general law, and for the purpose of considering the effect of the sections upon the act admittedly special which prescribes that a salary of five thousand dollars shall be paid to the superior judges of the county of Kern, we think it may properly be so denominated, because it was very clearly the intention of the legislature by the two sections mentioned to cover generally the cases of all of the counties of the state with respect to the subject-matter therein treated of. Taking the two sections together, they do form comprehensive legislation which would and did fix the salaries to be paid to every superior judge in the state. There were reasons, as we shall assume, which made it proper that the salaries of the superior judges of Kern County should be increased from the amount fixed by section 737; hence the special act was passed providing for the payment of five thousand dollars per annum to each of such judges. Now what was the purpose of the act of 1915 in so far as it was amendatory in character? It seems to have had one purpose only, and that was to make a change in the compensation of the superior judge of Sonoma County. It was an amendatory act, and in determining what the purpose of the legislation was, it is of first importance to consider what change was actually made in the language of the section. It is a general rule that the intent of the legislature is to be regarded in determining the question here presented, especially where an implied repeal of a statute is contended for. (McGivney v. Pierce, 87 Cal. 124, [25 P. 269]; Matter ofAmbrosewf, 109 Cal. 264, [41 P. 1101].) The special act which raised the salaries of the judges of Kern County to five thousand dollars contained express repealing clauses which put out of the way all legislation theretofore passed inconsistent with the provisions of that act. The 1915 amendment of section 737 purported to make a change in the existing law only as it affected the county of Sonoma, and this act contained no repealing clause of any sort. Is it not then a reasonable and logical deduction to make to say that the legislature by the act of 1915, by omitting repealing clauses and making only one specific change in the provisions of section 737, intended to leave all legislation which was not inconsistent with the amendatory language which affected Sonoma County, in force and of effect? If this is so, then the petitioner, upon the reason of the proposition alone, states a good foundation for his claim. There is another rule of construction which is applicable here. This rule is that an act general in its character will not repeal a special act, even though the former contains language which seems to cover the same ground as that included within the special law. There are authorities sustaining this rule, and we have one in an early case decided in this state which is very pertinent to the question here presented. In 1863 there was in force what was called the Judiciary Act, which provided that in the several counties of the state the county court should hold certain terms on the first Monday of January, March, May, July, September, and November of each year. In 1864 a special act was passed applicable to the county of Nevada alone, providing different times for the holding of the sessions of the county court in that county. This special act contained, as did the special act herein mentioned, a clause repealing all inconsistent laws. Desiring to add a proviso to the Judiciary Act, the legislature, in 1868, passed an amendatory act which first provided, in the language of the original statute, that the terms of court should be held at the times mentioned in the original act "in the several counties of the state." It was claimed in the supreme court that this amendatory act of 1868 repealed the special act relating to Nevada County, and the court held that such was not the case; that the general language which included all of the counties of the state did not affect or modify the provisions of the act theretofore passed, special in its nature, which applied to Nevada County alone. (People v. Tyler, 36 Cal. 522.) This case was later referred to with approval in the case of People ex rel. Board of StateHarbor Commissioners v. Pacific Improvement Co., 130 Cal. 442, [62 P. 739]. See, also; Bateman v. Colgan, 111 Cal. 580, [44 P. 238]; County of Trinity v. County of Mendocino, 151 Cal. 279, [90 P. 685]; Rymer v. Luzerne County, 142 Pa. St. 108, [12 L.R.A. 192, 21 A. 794]. We do not intend to say that a general act may never repeal a special act, but where this result occurs we are satisfied that the rule is that it must reasonably appear that the legislature clearly intended by the general act to nullify the provisions of the special statute inconsistent therewith. We have stated reasons which to us make it apparent that such an intent was not in the mind of the legislature when the act of 1915 was passed, and from the conclusions expressed it follows that the petitioner is entitled to the relief prayed for.

It is ordered that the writ issue.

Conrey, P. J., and Shaw, J., concurred.