not pass local or special laws creating offices or prescribing the powers or duties of officers, since the section does not attempt to create an office and is not a local or special law.

[9] ID.-CONTROL AND APPROPRIATION OF COUNTY MONEYS-PROHIBITED PROVISION NOT VIOLATED.-Section 4041c of the Political Code is not violative of section 13 of article XI of the constitution, which prohibits the legislature from delegating the power to control or appropriate county moneys.

APPLICATION for a Writ of Mandamus to compel the issuance of a warrant for services of additional assistant to a county treasurer. Granted.

The facts are stated in the opinion of the court.

W. W. Middlecoff for Petitioners.

Bradley & Bradley for Respondent.

Re

FINLAYSON, P. J.-This is an application for a writ of mandate to compel respondent, as auditor of Tulare County, to issue to the petitioner Foucht a warrant for $182, claimed to be due the latter as compensation for certain work done by him in assisting the county treasurer under a contract of employment made by him with the board of supervisors pursuant to section 4041c of the Political Code -a new section added in 1921. (Stats. 1921, p. 220.) spondent, who has demurred to the petition, attacks the constitutionality of this code section upon code section upon a number of grounds; and whether this new law is constitutional or not is the sole question presented for our consideration. Though the petition is presented by Foucht and the county, the two appearing as joint petitioners, in our discussion of the case we shall treat the matter, for the sake of brevity, as though Foucht were the sole petitioner.

Section 4041e reads: "Whenever in the judgment of the board of supervisors of any county it is necessary for the expeditious transaction of the business of any county office, the board by unanimous vote may provide for and allow additional assistance to any county officer. In any such case the board of supervisors shall fix the amount of compensation of such additional employees and shall limit in advance the period of time for which assistance is allowed.

The powers granted to the supervisors under the provisions hereof shall not be so exercised as to result in increasing the compensation of any county officer after his election or during his term of office."

Prior to the adoption of this section, one Henry Newman had been elected treasurer of Tulare County, then and now a county of the eleventh class. At the time of Newman's election the law respecting the compensation of the county treasurer in counties of the class to which Tulare County belongs and the treasurer's power to appoint deputies was as follows: By subdivision 5 of section 4240 of the Political Code it was and is provided: "In counties of the eleventh class the officers shall receive as compensation for the services required of them by law, or by virtue of their office, the following salaries: . . . The county treasurer, two thousand eight hundred dollars per annum, and one deputy at one thousand eight hundred dollars per annum." Section 4290 of the Political Code declared then, as it still does, that "the salaries and fees provided in this title shall be in full compensation for all services of every kind and description rendered by the officers named in this title either as officers or ex officio officers, their deputies and assistants, unless in this title otherwise provided, and all deputies employed shall be paid by their principals out of the salaries provided in this title, unless in this title otherwise provided." Ever since 1907, section 4024 has provided that "every county . . . officer may appoint as many deputies as may be necessary for the prompt and faithful discharge of the duties of his office."

The circumstances of petitioner's employment are as follows: Prior to November 8, 1921, the date of his employ. ment, valid county warrants were presented to the treasurer, but, for want of funds, were not paid. From the time of their presentation these warrants bore interest at the rate of five per cent per annum, payable by the county (Pol. Code, sec. 4105). On November 8, 1921, there remained unpaid of such warrants a large number, the total sum due thereon amounting to something like $400,000. At the date of petitioner's employment there was sufficient money in the county treasury to pay all of these interestbearing warrants. Accordingly, the county treasurer, pursuant to section 4106 of the Political Code, gave notice in a

newspaper that he was ready to pay the warrants. Thereupon it became necessary for the treasurer to estimate the accrued interest on all of these unpaid warrants before payments could be made. At that time the county treasurer had in his office but one deputy-the only deputy for whom a salary was provided by law. (Pol. Code, sec. 4240, subd. 5.) Under these circumstances, the expeditious transaction of the business of the county treasurer's office and the convenience of the public necessitated, in the judgment of the board of supervisors, that additional assistance should be provided and allowed the treasurer for the purpose of estimating the interest on these warrants. Thereupon the board, on November 8, 1921, provided for and allowed additional assistance to the county treasurer for the purpose of estimating the interest on these unpaid warrants. This it did by adopting, unanimously, a resolution whereby the petitioner here was employed by the board to assist the county treasurer in estimating the accrued interest on the interest-bearing warrants. The resolution fixed petitioner's compensation at seven dollars per day for the period of twenty-six days. Petitioner accepted the employment and performed the services for the period mentioned. In due time he presented to the board of supervisors his claim for such services. The claim, which was in proper form, was allowed by the board. Respondent, who, as we have said, is the county auditor, refuses to draw a warrant on the county treasurer authorizing payment of petitioner's claim, although there has at all times been ample money in the proper fund for that purpose. Hence this proceeding.

In support of his claim that section 4041e is unconstitutional and the employment of petitioner unauthorized, respondent contends: (1) That the employment of petitioner to assist the county treasurer worked an increase in the latter's compensation subsequent to his election and during his term of office, in violation of section 9 of article XI of the constitution; (2) that this code section is inconsistent with that uniformity which is required by section 11 of article I and by section 4 of article XI; (3) that it contravenes section 5 of article XI, which requires the legislature to regulate the compensation of county officers in proportion to duties; (4) that it is a local or special law, and hence violative of subdivision 28 of section 25 of article IV;

57 Cal. App.-44

and (5) that it involves an unlawful delegation of power, in contravention of section 13 of article XI.

It is not possible for any legislature, however farsighted it may be in anticipating future conditions, to foresee and provide against those occasional and extraordinary conditions of public business which inevitably must arise in many of the counties of the state from time to time between legislative sessions. Such emergencies, when they do arise, cannot be successfully taken care of by inflexible strait-jacket legislation, rigidly fitted to those conditions which are known to and can be perceived by the legislature when the law is passed. To meet such unforeseen, abnormal situations as they present themselves, a law possessing the requisite elasticity and conformability, such as section 4041c, for example, is necessary. The section in question seems to be the result of an honest and enlightened endeavor on the part of the legislature to deal equitably and fairly with a vital problem; and in any consideration of respondent's attacks upon this law we must never lose sight of the fact that, to justify the judiciary in declaring invalid such a statute, passed by a co-ordinate branch of the government, its conflict with the constitution should be clear and positive.

[1] The solution of some of the questions presented by respondent's argument against the constitutionality of section 4041c depends upon whether the section contemplates the creation of an office or the mere employment of an employee or servant of the board of supervisors. At the outset, therefore, it is essential to consider whether, in employing assistance under this new code section, the supervisors create a county office. We are satisfied that they do not. "A public office,' says our supreme court in Coulter v. Pool, 187 Cal. 181 [201 Pac. 120], "is ordi narily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the govern

mental functions of the particular political unit for which he, as agent, is acting. There are other incidents which ordinarily distinguish a public officer, such, for instance, as a fixed tenure of position, the exaction of a public oath of office, and, perhaps, an official bond, the liability to be called to account as a public offender for misfeasance or nonfeasance in office and the payment of his salary from the general county treasury."

Measuring the provisions of this code section by the foregoing definition, it seems evident that it does not contemplate the creation of a public office, but provides only for the employment of a mere employee or servant of the board of supervisors to assist a county officer whenever an emergency arises such an emergency as, in the judgment of the board of supervisors, makes it necessary in the expeditious transaction of the county's business that additional assistance be provided. The instant case affords a good illustration of the nature of the employment under the power vested in the several boards of supervisors by this code section. Here petitioner was temporarily employed, under contract, at a fixed per diem, to assist in expediting a part of the business of a county office by making certain interest calculations.

No oath of office or official bond is exacted from the person who is employed by the board of supervisors under section 4041c. There is no fixed tenure of office. On the contrary, the period of employment contemplated by the section is temporary and transient. The employment is but incidental and occasional. It begins and ends with the emergency which furnishes its reason and justification.

An office, as a general rule, is based upon some law which defines the duties appertaining to it and which fixes the tenure. The county engineer act which was before the court in Coulter v. Pool, supra, was such a law. There the legislature attempted to create an office; for the statute purported to define the duties of a county engineer and to fix his term at four years. An employment, as distinguished from an office, is, as a rule, based upon a contract with the employee, defining his duties, fixing his compensation and determining the period of his employment. As a general rule, a duty or employment which arises out of a contract, and which is dependent for its duration and extent upon