held liable except it be shown that the person in charge not only was the agent or servant of the owner, but also was engaged at the time in the business of his service. (Daily v. Maxwell, supra; Bryant v. Pacific Elec. Ry. Co., 174 Cal. 737, 742 [164 Pac. 385].) In this state it is now firmly established, also, that in the absence of a statute creating a liability, the rule applies when the driver is a minor child, and the father is the owner of the car, and all courts recognize the general rule that a parent is not liable for the torts of his child. (Spence v. Fisher, 184 Cal. 209, 211, 212 [14 A. L. R. 1083, 193 Pac. 255].) We may assume, also, that the law-making body was fully cognizant of another rule of law relating to the torts of minors, which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child where the parent's negligence made it possible for the child to cause the injury complained of, and probable that it would do so. (Schultz v. Morrison, 91 Misc. Rep. 248 [154 N. Y. Supp. 257, 258]; Hoverson v. Noker, 60 Wis. 511, 514 [50 Am. Rep. 381, 19 N. W. 382]; Chaddock v. Plummer, 88 Mich. 225 [26 Am. St. Rep. 283, 14 L. R. A. 675, 50 N. W. 135].) This liability is based upon the rules of negligence rather than on the relation of parent and child (Doran v. Thomsen, 76 N. J. L. 754, 760 [131 Am. St. Rep. 677, 19 L. R. A. (N. S.) 335, 71 Atl. 296]), and finds support in the direct relation of cause and effect. (Elmendorf v. Clark, 143 La. 971 [L. R. A. 1918F, 802, 79 South. 557].) In the case of an injury by an automobile, the liability rests not alone upon the fact of ownership, but upon the combined negligence of the driver in the operation of the automobile, and of the owner in entrusting the machine to an incompetent driver. (Berry on Automobiles, 2d ed., sec. 603; Parker v. Wilson, 179 Ala. 361, 371 [43 L. R. A. (N. S.) 87, 60 South. 150].) The legislature has now declared that under a given state of facts a liability exists where none existed before. The right of action here provided for is, in effect, a modification of the common-law rule exempting a parent from liability for the torts of his minor child, joined with the other rule that a parent may become liable for an injury caused by the child, and made possible, and probable, through the parent's negligence. Its creation does no violence to the 190 Cal. 44 provision of the constitution (art. I, sec. 11) requiring general laws to have uniform operation, nor that (art. I, sec. 21) forbidding a grant of special privileges to one citizen, or class of citizens, which are not given on the same terms to all. (Pritchard v. Whitney, 164 Cal. 564, 568 [129 Pac. 989].) minor's The objection that the law attempts to create a liability on the part of a parent or guardian signing a application, without regard to any inherent liability of such parent or guardian, and without regard to their negli gence or fault, is answered by what we have already said. The statute involved in Daugherty v. Thomas, 174 Mich. 371 [Ann. Cas. 1915A, 1163, 45 L. R. A. (N. S.) 699, 140 N. W. 615], so strongly relied upon by the appellant, is Inot the same as the one here. The court there had under review an act of the legislature which made the owner of an automobile liable for any injury caused by the negligent operation of his car by any person who might obtain posses Ision of it, even though it be without his consent or knowl edge. In declaring such provision repugnant to the con stitution, the court said, at page 379, it was not then dealing with "the question of the responsibility, be it moral or other wise, of the owner of an automobile who has placed it in the hands of an irresponsible person to use.' The judgment is affirmed. Lennon, J., Kerrigan, J., Lawlor, J., Seawell, J., Myers, J., and Wilbur, C. J., concurred. [S. F. No. 10512. In Bank.-March 24, 1923.] A. C. BAYLEY, Petitioner, v. E. F. GARRISON, as Au ditor, etc., Respondent. [1] PUBLIC OFFICERS-INCREASE OF PAY OF DEPUTY-CONSTITUTIONAL LAW.-Increase of the pay of existing deputies of publie officer, during the term of the principal, in cases where the principal Change of salary of deputy or other subordinate as violation of con stitutional provision against change of salary of public officer during term of office, note, 37 L. R. A. (N. S.) 388. at the commencement of his term was given a fixed salary and allowed deputies, also with fixed salaries, and all paid out of the county treasury, does not violate the provisions of section 9 of article XI of the state constitution, which prohibits the increase of the salary of an officer during his term. PROCEEDING in Mandamus to compel the Auditor of Alameda County to audit demand audit demand for salary. Writ granted. The facts are stated in the opinion of the court. Ezra W. Decoto and Frank Mitchell, Jr., for Respondent. WILBUR, C. J.-This is an original proceeding in mandamus brought by a deputy in the office of the county clerk of Alameda County whose position existed before the county clerk took office on January 6, 1919, but whose compensation was increased by the legislature of 1921, during the term of the office of the county clerk. The point involved, as stated in the petitioner's points and authorities, is as follows: "His petition involves the question as to the right to increase the pay of existing deputies, during the term of the principal, in cases, where the principal at the commencement of his term was given a fixed salary and allowed deputies, also with fixed salaries, and all paid out of the county treasury." That question was determined in favor of the petitioner's contention in the case of Harrold v. Barnum, 8 Cal. App. 21 [96 Pac. 104]. In addition to the authorities cited in that opinion in support of the view there expressed the following cases may be cited: Board of Commrs. of Muskogee County v. Hart, 29 Okl. 693 [37 L. R. A. (N. S.) 388, 119 Pac. 132]; State v. Oklahoma City, 38 Okl. 349 [134 Pac. 58]; State ex rel. Rumbold v. Gordon, 238 Mo. 168 [Ann. Cas. 1913A, 312, 142 S. W. 315]; Bowers v. City of Albuquerque, 27 N. M. 291 [200 Pac. 421]; Stone v. State, 18 Ala. App. 228 [89 South. 824]; Quernheim v. Asselmeier, 296 Ill. 494 [129 N. E. 828]; People v. Stong, 67 Colo. 599 [189 Pac. 27]; Hibbard v. Suffolk County, 163 Mass. 34 [39 N. W. 285]. The general rule is thus stated in 37 L. R. A. (N. S.) 389 as follows: "The general rule, however, seems to be that this constitutional prohibition against changing the salary of a public officer during his term of office applies only to of ficers who have a fixed and definite term, and does not apply to appointive officers, who hold only at the pleasure of the appointing power." [1] It is clear, then, that so far as the inercase of salary to the deputy is concerned it is not violative of article XI, section 9, of the constitution, which prohibits the increase of the salary of an officer during his term of office, for the reason that such deputy has no term of office within the meaning of the constitutional provision. Does the increase of the salary to a deputy increase the salary of the officer appointing the deputy? In considering this question it should be observed at the outset that the Penal Code (sec. 74a) makes it a felony for the officer to directly or indirectly receive or accept any part of the compensation of his deputy. That section provides as follows: "Every officer of this state, or of any county, city and county, city, or township therein, who accepts, keeps, retains or diverts for his own use or the use of any other person any part of the salary or fees allowed by law to his deputy, clerk, or other subordinate officer, is guilty of a felony.' It is clear, then, that whatever advantage the officer may derive from the fact that his deputy has an increased salary is not a direct benefit, but arises, if at all, from the securing of more valuable or competent help than could be obtained for the lesser amount. Is this advantage an increase of his compensation within the meaning of the constitution! So far as we know this point has never been decided adversely to the constitutionality of an increase of compensation to the deputy because of whatever incidental advantage might result to the principal. The point does not seem to have been considered sufficiently important to have been even suggested in any of the cases. Perhaps the outstand ing reason for this is that it is by no means clear that the additional compensation to the deputy is an advantage to the principal, and because the fixing of a salary to the deputy is altogether taken out of the hands of the principal and there is no means of ascertaining whether he could do better or worse for himself financially by the selection and payment of the deputy out of his own salary. Perhaps the antithesis of the proposition under consideration will be helpful in reaching a conclusion. The constitution of many of the states prohibit the increase or the decrease of the salary of a public officer as ours does in the case of certain state officers (Const., art. V, sec. 19). It has been held that the decrease of the salary of a deputy is permissible notwithstanding this constitutional provision (Somers v. State, 5 S. D. 321 [58 N. W. 804]; Id.; 5 S. D. 585 [59 N. W. 962]). It seems clear that the legislature could decrease the compensation of a deputy, at least to a reasonable extent, without in anywise affecting the compensation of the principal. If the same deputy continued to work for the reduced compensation it is evident that the salary of the principal would not thereby be reduced. If the volume of the work of the county officer was so reduced that the number of deputies supplied to him was wholly unnecessary, it would seem clear that to take away the salary provisions for such unnecessary deputies would not constitute a reduction of his salary. For instance, if the legislature should provide that the registration of voters should occur every four years instead of every two years, and should make a corresponding reduction in the office force of the county clerk or registrar of voters, this would hardly be considered a reduction of their salary, for they would receive for their compensation the same amount they had theretofore received. We conclude that the provision for the deputy is neither an increase of the salary of the officer nor of the deputy during his term of office within the meaning of article XI, section 9, of our constitution prohibiting an increase of salary. It is suggested that this construction of our constitution brings this opinion in conflict with that just rendered in the case of Wines v. Garrison, ante, p. 650 [214 Pac. 56], a companion case, for the claimed reason that the conclusion reached is inconsistent not only with the authorities supporting the case of Wines v. Garrison, supra, but also the theory on which the County Government Act is held to be general and uniform within the meaning of article XI, section 4, of the constitution. The question then is this: Does this construction of the act of the legislature increasing the |