Opinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of San Diego County.
COUNSEL:
The provision in chapter 9 of the charter under which the ordinance was passed is in conflict with section 8 of article XI. of the constitution, and is therefore void, and therefore the ordinance is void. The constitution having prescribed the mode, that mode was the measure of power. (People v. Gunn , 85 Cal. 247; Cooley's Constitutional Limitations, 78; State v. Rogers, 10 Nev. 253; 21 Am. Rep. 738; People v. Toal , 85 Cal. 340; Yarnell v. City of Los Angeles , 87 Cal. 606; Ex parte Ah You , 82 Cal. 342; People v. Bagley , 85 Cal. 348.)
Parrish, Mossholder & Lewis, for Appellant.
William H. Fuller, for Respondent.
There is no contractual relation between the chief of police and the city, even though the term and salary are named in the charter. (Love v. Jersey City , 40 N. J. L. 458.) These provisions in the charter not being in the nature of a contract, the city had power to diminish the salary therein provided for. (1 Dillon on Municipal Corporations, sec. 231; Love v. Jersey City , 40 N. J. L. 458; Cohen v. Wright , 22 Cal. 320; Commonwealth v. Bacon, 6 Serg. & R. 322; Conner v. City of New York , 5 N.Y. 295; Smith v. City of New York , 37 N.Y. 520; Long v. City of New York , 81 N.Y. 425; Haswell v. City of New York , 81 N.Y. 255; Koontz v. Franklin Co ., 76 Pa. St. 154; Jones v. Shaw, 15 Tex. 577; Pennie v. Reis , 132 U.S. 465; Crenshaw v. United States , 134 U.S. 99; Butler v. Pennsylvania, 10 How. 402.)
OPINION
THE COURT This is a proceeding for a writ of mandate to the respondent in his official character as auditor of the city of San Diego, commanding him to issue his warrant for an unpaid portion of plaintiff's salary as chief of police. The respondent demurred to the petition for the writ. The court sustained the demurrer, and dismissed the proceeding. Plaintiff brings this appeal from the judgment of dismissal, and contends that the court erred in sustaining the demurrer.
The petition shows that since May, 1889, the city of San Diego has been a municipal corporation by virtue of a charter generally known as a "freeholders' charter"; that from the date of the organization of the corporation until June 1, 1891, the petitioner held the office of chief of police; that by section 1 of chapter 9, article 3, of the city charter, the salary of the chief of police was fixed at eighteen hundred dollars per annum; that for the last four months of his official term, viz., February, March, April, and May, 1891, petitioner had been paid for salary only one hundred dollars per month, by reason of an ordinance of the city adopted January 31, 1891, by which the salary of chief of police was reduced to twelve hundred dollars per annum; and that after the expiration of his term of office, to wit, on February 24, 1892, the petitioner demanded of the auditor warrants upon the treasurer of the city for the unpaid portions of his salary for said four months, amounting to two hundred dollars, which the auditor (respondent) refused to issue, for the alleged reason that the salary of the chief of police had been reduced, as aforesaid, by ordinance.
Section 1 of chapter 9, article 3, of the charter of San Diego, after fixing the salaries to be paid to certain city officers, including the chief of police, provides: "The common council, in the month of January, 1891, and every four years thereafter, shall readjust and fix anew the amount of all official salaries provided for in this charter."
It is contended by appellant that notwithstanding this provision in the charter, the city had no power to reduce his salary, inasmuch as such reduction would be equivalent to an amendment of that clause in the charter fixing his salary; and under the provisions of section 8, article XI., of the constitution, the charter can be amended only upon the vote of electors of the city, and the approval of the legislature. The vice of this argument, however, rests in the assumption that the reduction of the salaries is an amendment of the charter. Instead thereof it is the execution of a power conferred upon the common council by the charter itself, and is within the direct lines of the authority [32 P. 579] conferred by the people in the adoption of that instrument, as much as would be the redistricting of the city into wards in the year 1892, and every five years thereafter, which is authorized in section 12 of chapter 2, article 1, of the same charter. The section is to be construed as if it was a direct provision that the salaries of the city officials shall be fixed in the month of January, 1891, and every four years thereafter, but that until so fixed they shall be at the amounts specified therein.
It is well settled that the mere appointment or election of a municipal officer for a specified time and salary creates no contractual relation, if such officer is at liberty to resign whenever he may elect to do so. "Neither acts of the legislature nor ordinances of city councils or boards naming terms and salaries are in the nature of contracts with officers. Although the term and salary may be named in the charter, yet there is no contract for a stipulated time or price that is binding on the public." (Love v. Jersey City , 40 N. J. L. 458; Dillon on Municipal Corporations, secs. 231, 265.) The appellant was not bound to hold the office, or to perform the duties thereof; and after the salary was reduced, having voluntarily held the office and accepted the reduced salary until the expiration of his term, his demand upon the auditor for additional salary, made eight months afterwards, was properly refused.
The judgment is affirmed.