Opinion
Department Two
Appeal from an order of the Superior Court of Fresno County granting the defendant a new trial, and from a subsequent judgment entered in favor of the defendant.
COUNSEL:
Subdivision 21 of the County Government Act of 1891 is equivalent in effect to adding the sum appropriated to the salary of the district attorney and requiring him to pay his deputies out of his salary. (Dougherty v. Austin , 94 Cal. 601.) It is not discretionary with the district attorney whether the office of assistant district attorney shall be filled. By passing the statute and providing the compensation the legislature has said that the public interest calls for the exercise of the power of appointment. Hence the word "may" in subdivision 21 is to be understood as "shall," and so construed the act is not unconstitutional. (See Endlich on Interpretation of Statutes, secs. 306, 310; Hayes v. Los Angeles County , 99 Cal. 74; Napa Valley R. R. Co. v. Napa County , 30 Cal. 435; Mason v. Fearson, 9 How. 248.)
C. C. Merriam, for Appellant.
Sayle & Coldwell, for Respondent.
JUDGES: De Haven, J. Fitzgerald, J., concurred. McFarland, J., concurs.
OPINION
DE HAVEN, Judge
It was held in the case of Welsh v. Bramlet , 98 Cal. 219, that subdivision 21 of section 170 of the County Government Act, approved March 31, 1891 (Stats. 1891, p. 295), contains local and special legislation, and is in conflict with section 5 of article XI of the constitution of the state, which directs that the legislature by general and uniform laws shall provide for the election or appointment in the several counties of such county, township, and municipal officers "as public convenience may require, and shall prescribe their duties and fix their terms of [37 P. 870] office." We can add nothing to the reasoning by which that conclusion was reached, and upon the authority of that case the judgment and order herein must be affirmed.
Judgment and order affirmed.
CONCUR
McFARLAND
McFarland, J. I concur in the judgment solely upon the authority of Welsh v. Bramlet , 98 Cal. 219, and Dougherty v. Austin , 94 Cal. 601, in which cases I could not concur.