Opinion
Appeal from the Sixth District.
COUNSEL
Relator was elected County Judge of El Dorado in the fall of 1852, received his commission and entered upon the duties of his office on the twenty-third of November of that year. This election was supposed to be to fill a vacancy; and, accordingly, relator was again elected in the fall of 1853, and again in the fall of 1857, and still holds the office. In 1857, the Legislature passed an act entitled " An Act to Reduce the Salary of the County Judge of El Dorado County."
" Sec. 1. The salary of the County Judge of El Dorado county shall be $ 3,000 per annum. Sec. 2. Nothing in this act shall be so construed as to affect the salary of the present incumbent." The balance of the act is simply a repealing clause. Previous to this act the salary of the Judge was $ 4,000 per annum. The Auditor refused, after the Act of 1857, to draw his monthly warrants for salary, except at the rate of $ 3,000 per year; and relator applies for mandamus for $ 2,333 33, the amount due on back salary, if the Act of 1857 be not applicable to him. The Court below denied the writ. Relator appeals.
Application for mandamus .
James Johnson, Relator, Appellant, pro per .
J. B. Harmon, also for Appellant.
S. W. Sanderson, District Attorney, for Respondent.
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. concurring.
OPINION
BALDWIN, Judge
The relator was elected to the office of County Judge of El Dorado county, in September, 1852. He went into office the twenty-third of November of that year; his term of office therefore extended under that election to November, 1856. In March, 1857, the Legislature passed an act reducing the compensation of this office, but added a proviso that nothing in the act should affect the present incumbent. The relator, under an erroneous apprehension of the law, was a candidate for, and received a commission under the election of 1853. We think this amounted to nothing as a title to hold the office, it not being vacant at the time of the election. The only matter of any serious difficulty, after our repeated decisions upon these questions of the tenure of judicial offices, is to determine what the Legislature meant in this proviso, that the reduction should not affect the present incumbent. It obviously did not design to give to the particular person in office a perpetual exemption from the operation of the statute; but it seems that the Legislature supposed a term to exist in the tenant of the office, and that the proviso was a cautionary provision protecting him from the effect of the reduction during that term.
We incline to the belief, against our first impression, that the Legislature, acting upon the mistaken idea that Johnson was elected in 1853, and consequently held office until 1857, used the language in the proviso with the view of providing against the reduction during the supposed term. If this conclusion is not very satisfactory, it is the most reasonable solution we can give of a difficulty attending the construction of a loosely drawn local statute.
Judgment reversed, and cause remanded, with directions to the Court or Judge below to issue the mandamus as prayed for in the application of the relator, and that the remittitur issue forthwith.