Elder v. Garey, 19 Cal. App. 776 [127 Pac. 826]; Hanson v. Underhill, 12 Cal. App. 546 [107 Pac. 1016], and Applestill v. Gary, 18 Cal. App. 387 [123 Pac. 228]). This was the only point involved in the case, for in that instance the officer was allowed a gross sum. The court proceeded, however, to say: "Where the statute provides a fixed salary for an officer and fixed salaries for deputies, all payable out of the county treasury, a subsequent law increasing the compensation of the deputies or their number will take effect at once. (Tulare County v. May, 118 Cal. 304 [50 Pac. 427]; Neuman v. Lester, 11 Cal. App. 577 [105 Pac. 785])." This statement was obiter dicta and is not supported by Tulare County v. May, supra, and is clearly incorrect for the reasons we have herein before stated, namely, that in every county all assistants and deputies not specifically provided for by an award of compensation in the statute are to be paid by the officer himself and, therefore, to pay them from the county treasury would be an increase of compensation in violation of the constitution where such allowance is made during his term of office.

[2] We have thus far dealt with the proposition advanced by the petitioner that section 4290 of the Political Code did not justify the conclusion that its language was applicable to counties in which deputies were provided and authorized to be paid directly from the treasury by the County Government Act. But other considerations lead to the same conclusion. In order that public funds may be expended it is essential that such expenditure be authorized by law, as was said by this court in Irwin v. County of Yuba, 119 Cal. 686, 690 [52 Pac. 35, 37]: ". ... Whenever the courts have been appealed to in these cases, they have uniformly held to the only safe rule-that public officers and municipal boards must keep within the limits of their power as prescribed by law. . . . Nothing is better settled than that a person who accepts an office with compensation fixed by law is bound to perform the duties for the compensation. Mr. Dillon in his Municipal Corporations, section 233, speaking of this rule, says: "The rule is of importance to the public. To allow changes and additions in the duties properly belonging or which may properly be attached to an office to lay the foundation for extra compensation, would soon introduce intolerable mischief. The rule, too, should be very rigidly enforced. The statutes of

the legislature and the ordinances of our municipal corporations seldom prescribe with much detail and particularity the duties annexed to publie offices; and it requires but little ingenuity to run nice distinctions between what duties may, and what may not, be considered strictly official; and if these distinctions are much favored by the courts of justice it may lead to great abuse.' Again, the same author says (section 234): 'Not only has an officer, under such circumstances no legal claim for extra compensation, but a promise to pay him an extra fee or sum, beyond that fixed by law, is not binding, though he renders services and exercises a degree of diligence greater than could legally have been expected of him.'" Hence, unless the statute expressly authorizes the payment of deputies from the county treasury they cannot be so paid. By section 59 of the County Government Act, above quoted, and the corresponding section of the Political Code (sec. 4024) the officer has the authority to appoint as many deputies and assistants as may be necessary to enable him to perform the duties of his office. This would be the rule without any statutory authority. (Taylor v. Brown, 4 Cal. 188 [60 Am. Dec. 604]; Jobson v. Fennell, 35 Cal. 711.) These deputies, however, cannot be paid from the public treasury unless some express provision is made for such payment.

[3] If it is conceded, as it must be under the authorities above quoted, that to prevent the inevitable decrease of the officer's salary due to payments necessary to be made by such officer to a necessary deputy by authorizing the county to pay such deputy is an increase of the salary of the officer within the meaning of the constitutional inhibition against increasing the salary of an officer during his term of office, then it must follow that without the express statutory declaration in section 4290 of the Political Code, requiring the officer to pay all additional deputies not otherwise provided for, that a statute passed during his term of office authorizing the payment of such additional deputy from the county treasury is an increase of salary within the meaning of the constitutional provision, no matter whether the of ficer was originally paid a lump sum or was, in addition to his own compensation, allowed a certain number of deputies paid by the county. If there is an error in this process of reasoning it arises from the conclusion long ago arrived

at by this court that to prevent an inevitable decrease of salary is an increase of compensation within the meaning of the constitution. This question has been too long settled in this state to justify its reconsideration.

The petition is denied.

Lennon, J., Kerrigan, J., Myers, J., Lawlor, J., and Waste, J., concurred.

[S. F. No. 10528. In Bank.-March 21, 1923.]

JAMES B. LOGAN, Petitioner, v. J. J. SHIELDS, as County Auditor, etc., Respondent.

- STATUS OF.

[1] PUBLIC OFFICERS TRAFFIC OFFICERS One whose duty it is to regulate traffic upon the public streets of a county is to that extent exercising a part of the sovereign power of the state, and for that reason is a public officer as distinguished from a mere employee.

[2] ID.

OFFICER APPOINTED BY SUPERVISORS-COMPENSATION-LACK OF AUTHORITY.-The board of supervisors of a county has no power to authorize payment from the county treasury of the salary of a traffic officer appointed under a resolution passed by the board.

APPLICATION for a Writ of Mandate directed to the Auditor of San Mateo County to compel him to audit a demand. Writ denied.

The facts are stated in the opinion of the court.

Ross & Ross for Petitioner.

Franklin Swart and John H. Machado for Respondent.

WILBUR, C. J.-This is an original proceeding in mandamus. The petitioner has been employed as a traffic officer or employee by the board of supervisors of San Mateo County at a salary of $150 per month. A claim for that amount for the months of November and December, 1922,

1. Policeman as public officer, note, Ann. Cas. 1917B, 663.

was audited and approved by the board of supervisors and was presented by the petitioner to the respondent auditor for his warrant. The auditor having refused to issue his warrant, petitioner brought this proceeding to compel the issuance of the warrant. It appears from the return herein that for a period of about ten years the board of supervisors of San Mateo has, by resolution and by appointment thereunder, employed and paid a number of persons known in the resolution and in the report as traffic officers or "traffic cops."

The petitioner was appointed or employed under such resolution and by virtue thereof seeks by this proceeding to secure his compensation.

If the petitioner is an officer within the meaning of article XI, section 5, of the constitution, it is clear under decisions rendered shortly after the adoption of the constitution that the legislature of the state alone has power to create such an office and that the board of supervisors of the county can neither provide for such officers or their compensation under the police power granted directly by the constitution to the counties in article XI, section 11, nor by authority expressly granted by the legislature. The rule was thus stated in County of El Dorado v. Meiss, 100 Cal. 268, 274 [34 Pac. 716, 717]: "The duty of providing for the election or appointment of the particular officers named in section 5 of article XI of the constitution, 'and such other county officers . . as public convenience may require,' and to prescribe their duties and fix their terms of office, is by this section vested exclusively in the legislature of the state, and can be exercised by no other body. The legislature cannot divest itself of this duty by any delegation of the power. "This provision of the constitution,' said this court in Welsh v. Bramlet, 98 Cal. 219 [33 Pac. 66], 'is mandatory, and must be construed, not only as giving to the legislature the exclusive authority to provide for the officers in the several counties, fix their terms of office, and prescribe their duties, but also as declaring that such provision must be made "by general and uniform laws," and that any law which the legislature may enact upon these subjects must be uniformly applicable to all the counties in the state." It was, therefore, held in that case that an ordinance creating the office of license tax

1

collector was void in so far as it attempted to create such office because of want of power in the board of supervisors to create such an office.

In the case of People v. Wheeler, 136 Cal. 652 [69 Pac. 435], this court held that a county physician was not an officer within the meaning of the constitutional provision above quoted. With reference to the question as to whether or not an office was created by the appointment of the county physician it was said:

"It may be added that if the act could be thus construed, it would be clearly unconstitutional. For the effect of the act would then be to delegate to the board of supervisors the power to create an indefinite number of public officers, with varying duties and compensation; which cannot be regarded as within the constitutional powers of the legislature. The legislature cannot commit to the discretion of others the important function of creating public offices in unlimited or indefinite number.' (Ford v. Harbor Commrs., 81 Cal. 19, 37 [22 Pac. 278]; Farrell v. Board of Trustees, 85 Cal. 408, 415 [24 Pac. 868].) Still more obviously would this be the case if the supposed office be regarded as a county office; as, 'if an office at all,' it should be. (People v. Harrington, 63 Cal. 257, 260.) For with relation to county offices, it is the constitutional duty of the legislature not only to provide for the election of the officers, but also to fix their terms of office, to prescribe their duties, and to regulate their salaries or compensation; and this duty could not be delegated to the board of supervisors or others. (Const., art. II, sec. 5; Ventura County v. Clay, 112 Cal. 65, 70 [44 Pac. 488]; County of El Dorado v. Meiss, 100 Cal. 268, 274 [34 Pac. 716]; Farrell v. Board of Trustees, 85 Cal. 415, 416 [24 Pac. 868]; County of Los Angeles v. Lopez, 104 Cal. 257 [38 Pac. 42]; People v. Johnson, 95 Cal. 471, [31 Pac. 611]; Dougherty v. Austin, 94 Cal. 601 [16 L. R. A. 161, 28 Pac. 834, 29 Pac. 1092]; Dwyer v. Parker, 115 Cal. 544 [47 Pac. 372].)"

In the statute considered in Coulter v. Pool, 187 Cal. 181 [201 Pac. 120], the legislature attempted to delegate to the board of supervisors the power to employ a county engineer. Although such officer was designated as an employee in the statute it was held that he was in fact an officer and that the attempted delegation of power was void. The court there said: "... "The label placed by the legislature