The opinion
SHAW, J.,
dissenting.—I dissent.
In
Tucker
v.
Barnum,
144 Cal. 266 , [ 77 Pac. 919 ], the court decided that the constitutional requirement to fix the compensation of township officers in proportion to duties was violated in every case where it was so fixed in different classes of townships that in any particular month it might happen that the officers of the class of townships, or of a single township of the class, under consideration would be- paid at a rate in greater or less proportion to duties performed than the officers of some other class or township whose pay was fixed by a different act, or a different section, or clause of the same act; and in effect, that such a law would be void, although, as matter of fact, the compensation so received for such month in the class or township involved was in proper and just proportion to duties. The same rule is followed here with a wider application. The flat rate of one hundred and twenty-five dollars a month in the class of townships here considered is declared invalid because it is not the same as that given in other townships of different population, although in those other townships the rate is fixed upon an entirely different plan or basis, having no relation to, and furnishing no means of comparison with, the rate in question in the class involved.
*688
And this is again done without deciding or inquiring whether the rate in either of the classes referred to is or is not in just proportion to duties.
Although it is put on an entirely different ground, the facts show that the decision really is that the rate in different classes of townships is contrary to the constitutional mandate in question, unless the different rates are graduated to a •scale so as to make them proportional to
population,
rather than in proportion to
duties,
a proposition expressly repudiated in the leading case on the subject,—namely,
Longan
v.
Solano County,
65 Cal. 122 , [ 3 Pac. 463 ], which has been considered the rule of legislative action for the last twenty years. If this is not the correct rule in respect to counties, I can perceive no just ground for holding it a correct rule for townships, both being subject to the same constitutional injunction. Unless that case is to be overruled, with the result that until the legislature makes further provision the compensation of officers will- be regulated entirely by the fee-bill of 1895, I do not think the decision of this court in this case can be logically sustained.
It may be added that in
Green
v.
Fresno County,
95 Cal. 329 , [ 30 Pac. 544 ], it was decided that the question whether or not the compensation of county and township officers was in due proportion to duties was for the legislature and not for the courts, and that the legislative judgment on the subject is conclusive. The same proposition was in effect held in
Longan
v.
Solano County,
65 Cal. 122 , [ 3 Pac. 463 ], but it was not expressly stated. The argument in that case covered the entire County Government Act, which presented as great ■a lack of uniformity of compensation, as compared .either to population of the respective counties or to the duties required, as could well be conceived, and yet it was held not to be a violation of the constitutional command to fix the compensation in proportion to duties.