Opinion
Lester J. Gendron, in pro. per.
Roy E. Wolfe, Asst. County Counsel, Madera, for respondent.
BROWN, Justice.
This appeal originated in an action wherein both parties sued for declaratory relief. The complaint of the County of Madera sought a determination of the constitutionality of those provisions of section 28135 (formerly section 28134) of the Government Code of the State of California which forbids a district attorney in a county of the 35th class from engaging in the private practice of the law and requires him to devote his full time to the duties of his office. The defendant-appellant cross-complained seeking the same determination and, in addition, a determination of the right of the County, acting through its board of supervisors, to withhold his salary as district attorney during the period he engaged in private practice. Following trial the court made appropriate findings of fact and conclusions of law and entered judgment that (1) section 28135 (formerly section 28134) of the Government Code of the State of California is valid and constitutional; (2) by the terms of that section defendant is forbidden to engage in the private practice of law during his term as District Attorney of Madera County; and (3) the County Auditor of Madera County is prohibited by law from paying defendant's salary as district attorney during the period of time he engaged in the private practice of the law. From the judgment defendant brought this appeal.
Facts pertinent to this decision are as follows:
Defendant was elected to, and qualified for, the office of District Attorney of Madera County and assumed the duties of that office in January 1958. He continued to engage in the private practice of the law and gave written notice to the Madera County Board of Supervisors of his intention to continue private practice during his term of office. On December 1, 1960, the Board adopted a resolution directing the county auditor to withhold defendant's salary as district attorney but subsequently, for reasons not relevant here, rescined that order and defendant did receive his salary to the time of judgment in the court below. Since that judgment the county auditor has withheld defendant's salary as district attorney.
Appellant first contends that the classification plan by which each county in California is the only county in its respective class is illusory, lacks uniformity and is contrary to the Constitution, which provides:
'* * * shall regulate the compensation of boards of supervisors, district He defines 'class' in various ways, groupings into classes, and concludes that because there are 58 population descriptions (Gov.Code, §§ 28022-28079) each county qualifies for its own 'class,' and therefore there is no classification, but a substitution of numerical designations for the names of the counties. He distinguishes between some of the counties with the same population having different salaries for the different officers and points out that one county authorizes the district attorney to engage in private practice of law while another group of counties does not mention the private practice of law by the district attorney during office hours, and the last group forbids the practice altogether. Therefore, regulation of compensation is without uniformity and does not come under any true classification procedure; that the classification is a sham; that the burden of showing arbitrary acts rests upon the one who assails the classification. (People v. Western Fruit Growers, 22 Cal.2d 494, 507, 140 P.2d 13.)
He also complains about the changes in classification that occur whenever there is a new census and that the counties have moved up and down from their various classes, citing Madera County, which fell from the 34th class to the 35th class in 1961. While his general contention is that such classification is not proper, he cites no cases otherwise to illustrate his position.
In California physicians' Service v. Garrison, 28 Cal.2d 790, 802, 172 P.2d 4, 12, 167 A.L.R. 306, the court held that:
'As stated in Livingston v. Robinson, 10 Cal.2d 730, 740, 76 P.2d 1192, 1196: 'The question of classification is generally one for the legislative power, to be determined by it in the light of its knowledge of all the circumstances and requirements, and its discretion will not be overthrown unless it is palpably arbitrary. Wores v. Imperial Irr. Dist., 193 Cal. 609, 227 P. 181.''
The court further said that it will be presumed that the Legislature made inquiry and that any classification is based on the result of that inquiry.
The matter is further discussed in Chitwood v. Hicks, 219 Cal. 175, 178-179, 25 P.2d 406, 407:
'That population of a county is a natural and intrinsic distinction justifying a classification upon that ground is evidenced by the Constitution itself, which makes the population of the various counties of the state the basis upon which the Legislature may classify them for the purpose of fixing the salaries of county officers.'
This method of classification has been in existence for many, many years, which is noted by examining early statutes of California, and particularly 1883, chapter LXXV, which classifies all the counties pursuant to the Constitution and fixes the salaries. This has been done again in 1897, chapter CCLXXVII, page 452, classifying the counties at page 492, and setting up the first county government act for Madera at page 561, and about every ten years since then.
It may be true that the appellant does not like the present classification system of the Legislature, but this is a duty and a power exercised by the Legislature in its wisdom, and the fact that it has been doing this for these many years certainly is illustrative that the people and the counties of California like this method and have constantly followed it.
There are many other types of classification used in other ways in California. Prior to 1955 the superior courts for each of the counties in California were set up by name and number in separate statutes for each respective county. In 1955 Government Code section 68202 was passed setting up a new classification of superior court judges and municipal court judges and determining their salaries on the basis of 100,000 population for superior court judges and 250,000 population for municipal court judges. Prior to that even municipal court Thus, we see no objection to the classification system adopted by the Legislature. Home rule is important in California and has been ever since the California Constitution was adopted. And county government acts were set up for the entire purpose of allowing each county to make its own recommendations to the Legislature and the governor for the fixing of salaries authorized in the Constitution for county government, which are collected and paid by the respective county taxpayers. Some counties want to pay their officers more money than others, based on their own local problems and conditions.
The present classification of counties as adopted by the Legislature is constitutional and within the powers of the Legislature. Any change in such a system is entirely within the discretion of the Legislature and it will have to decide, as it did with the judges of the court, to use some other system if it so wishes.
Appellant next contends that the Legislature may not pass a law which affects only Madera County in restricting the district attorney from private practice. Constitution of the State of California, article XI, section 5, reads in part as follows:
'The Legislature, by general and uniform laws, shall provide for the election or appointment, in the several counties, of * * * district attorneys * * * and shall prescribe their duties and fix their terms of office.'
Government Code section 28135 regulates Madera County, and provides in part as follows: follows:
'The district attorney [shall receive as compensation], ten thousand dollars ($10,000) a year. He shall devote his entire time to the duties of his office and shall not engage in the private practice of law during his term of office.'
Article I, section 11, of the Constitution of the State of California provides:
'All laws of a general nature shall have a uniform operation.'
The sections affecting district attorneys, commencing with Government Code section 26500, outline their duties and restrictions. Section 26527 restricts the district attorney from presenting any claim against the county, except his own; section 26540 restricts him from defending any person accused of a crime; section 26541 restricts him from taking part in an eminent domain proceeding; section 26543 restricts him from acting as counsel for any private party in which the State or subdivisions thereof are defendants. Thus, the duties are both positive and negative.
Appellant contends that the questioned clause in Government Code section 28135 is a restriction of his duties and is not a general law as governed by the Constitution (Const., Art. XI, § 5; art. IV, § 25, subd. 28); does not affect his compensation and that if permitted at all it would have to be by a general act which might classify the counties in such a way as to take care of smaller counties which cannot afford a full-time district attorney.
However, it is respondent's position that this is not a restriction upon his duties, that the duties remain the same as before, but that it is a part of his compensation because before this was added to the Madera County Act the salary of the district attorney was $7,500 and was increased to $10,000 with the thought in mind that he could not engage in private practice; and that the Act is constitutional, quoting 45 Cal.Jur.2d, Statutes, section 21, page 548, as follows:
'The legislature may provide for a statute to go into effect or become operative absolutely, conditionally, or contingently on the happening of a future or uncertain event. It may even enact Both parties agree to the proposition that the salary is attached to the office and not to its occupation or performance of duties. (Derrick v. City of Vallejo, 4 Cal.App.2d 25, 28, 40 P.2d 949.)
Appellant maintains that a general law is required similar to Government Code section 68082, which restricts a justice or judge in the practice of law in certain instances.
Article IV, section 25 of the Constitution states:
'The Legislature shall not pass local or special laws in any of the following enumerated cases, that is to say:
* * *
* * *
'Twenty-eighth--Creating offices, or prescribing the powers and duties of officers in counties, cities, * * *
'Twenty-ninth--Affecting the fees or salary of any officer. * * *
'Thirty-third--In all other cases where a general law can be made applicable.'
Thus, that portion of the section which affects counties of the 35th class and designates the salary of the district attorney at $10,000 annually, is constitutional. That portion of the same section which restricts him from engaging in private practice is not a general law affecting all counties and is therefore unconstitutional.
Much reference is made to the various opinions of the Attorney General and Legislative Counsel. In the opinion of Attorney General Earl Warren dated May 3, 1941 (Senate Journal (1941) pp. 1514-1515), the same question was submitted and answered. There, the Attorney General held that it is competent for the Legislature to classify counties by population in fixing compensation; that it is unconstitutional to classify counties for the purpose of prescribing the duties of district attorneys or other officers; and that a statute forbidding a district attorney to practice law is not one for the regulation of his compensation but rather is a law that is for the regulation of his duties and his qualifications for office. In this same opinion a reference was made to an earlier attorney general's opinion by U.S. Webb, dated April 9, 1937, in the same Senate Journal at pages 1515-1517, where a full discussion is made of the various cases on this subject, citing Chitwood v. Hicks, supra, 219 Cal. 175, 25 P.2d 406, where the court held that a law applicable to a county of the twelfth class only, providing for a stenographer or secretary to the court, was special legislation and unconstitutional.
But in Noel v. Lewis, 35 Cal.App. 658, 170 P. 857, an act which provided for a secretary of the superior court in all counties, etc. over 300,000 population was held constitutional, there being in the view of the court something in the nature of such population which sanctioned the act of the Legislature in making such provision apply where such population existed.
On the other hand, the Legislative Counsel issued a memorandum dated May 5, 1941, found in the same Senate Journal at pages 1518-1519, in which counsel said that in regulating compensation the Legislature may take into account all elements which make up the services of the district attorney in the county in which he is employed, such as the population, size of county, and the amount of business he must handle, and if the Legislature determines that the conditions in the county do not require full-time service, it may regulate the compensation accordingly and that therefore, by the Constitution's permitting the classification by population for the regulation of compensation, the prohibition against engaging in the private practice set forth in the statute herein involved is a declaration of the amount of service for which he is compensated.
The question of a general law is also discussed in Consolidated Printing & Pub. Co. v. Allen,
In Galli v. Brown, 110 Cal.App.2d 764, 778, 243 P.2d 920, 929, the court said:
'It is well settled that the Legislature cannot, by statute, create or impose rights or liabilities on the officers or employees of one county not imposed on the officers and employees of all counties.'
The court went on to say at page 779, 243 P.2d at page 930 that, '* * * the regulation of the liability of the district attorney is not a municipal affair.'
In Hollman v. Warren, 32 Cal.2d 351, 360, 196 P.2d 562, the court held that the provisions of an act which limited the number of notaries for San Francisco is invalid as a special and local law. There, the court said at page 359, 196 P.2d at page 567: 'No attempt is made to classify the counties for the purpose of ascertaining the number of notaries according to the requirements of those counties or the effect of the population thereof on the needs.'
Therefore, it would seem to us that the paragraph relating to private practice in section 28135 is unconstitutional, not being a general law as required by the Constitution.
An effort was made to establish a uniform system for payment of district attorneys' salaries in a bill before the Legislature in 1957, Senate Bill 1666. As amended, it would have set up a uniform salary for district attorneys in counties having populations of 250,000 and less than 500,000 at $15,000 per year, and in counties between 40,000 and 250,000 at $13,500 per year, with district attorneys' private practice eliminated and with the requirement that the district attorney devote his full working time to the duties of the office. This bill died in committee. It does indicate, however, that the Legislature is interested in this subject of uniform salaries and regulating the private practice of the law by district attorneys.
The Legislature, if it so desires, may restrict the practice of all district attorneys in counties in excess of a certain population, or may offer a constitutional amendment to the people which would allow each county to have placed in its county government bill, a limitation or restriction on the district attorney on the right to practice law. Some counties in certain classes cannot afford a full-time district attorney or do not have enough business for a full-time district attorney, or may not be able to get a district attorney to forego his private practice in order to act as district attorney for a small salary.
The title to the 1957 amendment to Government Code section 28134 reads as follows:
'An act to amend Section 28134 of the Government Code, relating to compensation for public service in counties of the thirty-fourth class.' St.1957, p. 2921.
Appellant claims that this violates article IV, section 24, of the Constitution which, in general, provides that 'Every act shall embrace but one subject, which subject shall be expressed in its title,' and claims that the 1957 amendment does not provide in its title the subject which is contained in the amended act and therefore, this part amended is void.
In Milgate v. Wraith, 19 Cal.2d 297, the court said at page 304, 121 P.2d 10, at page 13:
'An amending title is sufficient if it reads: 'An act to amend' a certain section of the code or a statute.'
(See also Beach v. Von Detten, 139 Cal. 462, 73 P. 187.)
We feel that the title is sufficient to cover all amendments to an existing act.
If it were legal in the county government act to have a special provision for the district attorney to require him to devote full We have concluded that the provision contained in section 28135 relating to the private practice of law regulates the duties of the District Attorney of Madera County and is therefore violative of the constitutional requirement that all laws respecting the duties of a district attorney must be general and uniform.
The judgment is reversed.
CONLEY, P.J., concurs.
STONE, J., deeming himself disqualified, did not participate.