This contention is answered by the many cases upholding similar provisions with respect to juvenile offenders. ( Boys'and Girls' Aid Society v. Reis, 71 Cal. 627 [12 P. 796]; ExParte Liddell, 93 Cal. 633, 640 [39 P. 251]; Ex Parte Nichols, 110 Cal. 651, 653 [43 P. 9]; In re Daedler, 194 Cal. 320 [ 228 P. 467]; In re Sing, 13 Cal.App. 736 [ 110 P. 693]; People v. De Fehr, 81 Cal.App. 562 [ 254 P. 588]; see People v. Smith, 218 Cal. 484, 488 [ 24 P.2d 166]; 3 A.L.R. 1614.) [8] Petitioners contend that their detention by the Authority is illegal because "no sentence or judgment" has ever been imposed upon them by the superior court, and they have been deprived of an appeal from their commitments to the Authority.
This construction, with the reasons leading to it, is very clearly set forth by Thornton, J., in his concurring opinion in Ex parte Reis, 64 Cal. 233, [30 P. 806], where it was held to be the duty of the treasurer to pay phonographic reporters in criminal cases the compensation fixed by the court (pursuant to Code Civ. Proc., secs. 269 to 271), without the necessity of approval or audit by any city and county officer. The power of the court to fix the compensation of the reporter and to order payment of the same is affirmed in Stevens v. Truman, 127 Cal. 158, [ 59 P. 397]. In Aid Society v. Reis, 71 Cal. 634, [12 P. 796], the court held that the approval of the supervisors was not necessary to the validity of a claim for the support of a minor committed to the custody of a charitable corporation under section 1388 of the Penal Code. In Ex parte Widber, 91 Cal. 367, [27 P. 733], it was held that a demand ordered paid by the judge for the necessary expenses of providing him with a suitable courtroom was not within the limitations of the Consolidation Act.
We turn now to the case law relating to article IX, section 8. In Aid Society v. Reis (1887) 71 Cal. 627, 632 [12 P. 796], it was held that the provision of funds by the City and County of San Francisco to help support privately run societies for maintenance and care of delinquent children did not violate the constitutional provision in question, since the societies were not organized for the sole purpose of disseminating knowledge and imparting scholastic instruction. In 1947, it was held that article IX, section 8, was not involved in a program to release public school children to attend religious services or instruction since no public funds were involved.
Houses of correction, penal institutions and the like are, of course, not schools within the public school system of the state. ( Boys Girls Aid Society v. Reis, 71 Cal. 627 [12 P. 796].) But that is not the same thing as saying that a public school cannot establish a class for prisoners within the prison walls.
There was no room for difference of opinion as to the construction of the law, the only ground for debate being as to whether the statute was in force and as to the constitutional authority of the legislature to confer such power upon the court. In Boys and Girls Aid Soc. v. Reis, 71 Cal. 627, [12 P. 796], it was held that an order of the police court of the city and county of San Francisco for the payment out of the city and county treasury of the expenses for the maintenance of a minor convicted of a misdemeanor and committed to the custody of the officers of a nonsectarian charitable corporation is not an exercise of the right of taxation without representation, and that it was the duty of the treasurer to comply with such order, notwithstanding the demand had not been first approved by the board of supervisors. But the law therein explicitly provided that "such court may further, in its discretion, direct the payment of the expenses of the maintenance of such minor during such period of two months, not to exceed in the aggregate the sum of twenty-five dollars," etc., and the court said: "To the judge of the proper court the statute commits the discretion of making the orders for such payments; where such a discretion is by law conferred upon a specific officer, such of
(Ex parte Reis, 64 Cal. 233. See, also, Boys etc. Aid Soc. v. Reis, 71 Cal. 627; McAllister v. Hamlin, 83 Cal. 363.) 3.
This language seems plain and unequivocal, leaving no room to doubt that the legislature intended to impose upon the counties the burden of paying one-half of the expense of keeping all minors committed to the institution for any cause whose parents, guardians, or other protectors were unable to pay such expense. That the legislature was authorized to pass such an act, and impose such burdens upon the counties, was, in effect, held in Aid Soc. v. Reis , 71 Cal. 627. It follows that the demurrer was properly overruled, and the judgment should be affirmed.
The demands are akin to salary demands, and it makes no difference that the amount is not fixed by statute. (Ex parte Reis , 64 Cal. 233; Aid Society v. Reis , 71 Cal. 634; Ex parte Widber , 91 Cal. 367.) JUDGES: McFarland, J. Temple, J., and Henshaw, J., concurred.
Under the above circumstances, the court certainly had no inherent power to make an order placing the petitioner in the unpleasant and perilous position of either paying out the people's money or be punished for contempt of court. Under the provision of the code the court does not even audit the demand; that act is performed by the judge, and when performed, the power given under this section is exhausted, and whatever duty devolves upon the treasurer thereafter in relation to such demand is a duty imposed by law, and a neglect or refusal to perform that duty renders him liable to proceedings by writ of mandamus, or other appropriate remedy. The cases of Ex parte Reis , 64 Cal. 233, and Boys' and Girls' Aid Society v. Reis , 71 Cal. 627, add no weight to respondent's [27 P. 735] position. The latter case is a proceeding in mandamus; and in the matter of Ex parte Reis , 64 Cal. 233, the language of the statute was: "And paid out of the treasury of the county on the order of the court."
And when properly exercised, the board of supervisors is not required to supervise the action of the court." (Aid Society v. Reis , 71 Cal. 634, and authorities there cited.) We therefore conclude that the functions to be performed by the magistrate in such a matter is not legislative, but judicial; that the law under which he is authorized to act is not unconstitutional; and that the county auditor should draw the warrant on the treasurer without any supervision by the board of supervisors of the properly performed judicial action of the magistrate.