Madera County v. Gendron

• Decision Date: 13 June 1963
• Citation: 59 Cal.2d 798,31 Cal.Rptr. 302,382 P.2d 342
• Court: California Supreme Court
• Parties: , 382 P.2d 342, 6 A.L.R.3d 555 COUNTY OF MADERA, Plaintiff and Respondent, v. Lester J. GENDRON, as District Attorney, Defendant and Appellant. S. F. 20959.

Page 302

31 Cal.Rptr. 302

59 Cal.2d 798, 382 P.2d 342, 6 A.L.R.3d 555

COUNTY OF MADERA, Plaintiff and Respondent, v. Lester J. GENDRON, as District Attorney, Defendant and Appellant.

S. F. 20959.

Supreme Court of California, In Bank.

June 13, 1963.

Lester J. Gendron, in pro. per.

Everett L. Coffee and Roy E. Wolfe, County Counsel, for plaintiff and respondent.

TOBRINER, Justice.

We are called upon to adjudge the constitutionality of Government Code section 28135 insofar as it prohibits the district attorney of Madera County from engaging in the private practice of law and to determine, if he does so, whether the county may lawfully withhold his salary. We shall point out why we have concluded that Government Code section 28135 is valid, but that the county should not withhold the district attorney's salary because of his failure to observe the section. We likewise set forth our reasons for holding that the action has not become moot.

The County of Madera brought this action for declaratory relief against the district attorney of Madera County for a determination of whether it could legally pay the defendant his salary in view of the fact that he allegedly engaged in the private practice of law contrary to the provisions of the above-mentioned section 28135 of the Government Code. ¹ Defendant admitted in his answer that he did thus engage in private practice but filed a cross-complaint which sought a declaration of the unconstitutionality of section 28135 by reason of section 11 of article I, section 25 of article IV and section 5 of article XI of the California Constitution.

The trial court upheld the validity of the challenged legislation and ruled that the plaintiff could not legally pay the defendant's salary if he were engaged in the private practice of law; the court entered judgment in accordance with its decision. Defendant appeals from that judgment.

We begin by delineating the legislative design for the regulation of county government. Government Code section 28020 constitutes a legislative declaration of the population of the several counties in California. Sections 28022-28079 segregate each county by population so that each classification embraces but one county. The salaries of specified officers in each classification are fixed by sections 28101-28158; some of these sections also purport to restrict the private practice of law by the district attorney. Section 28056 defines counties with a population of 37,000 and under 48,000 as counties of the 35th class. Only Madera County meets this description. Section 28135 provides for salaries in counties of the 35th class.

Defendant's first contention, that this system of classification is illusory under article XI, section 5, of the California Constitution, cannot stand. The section provides: 'The Legislature, by general and uniform laws, shall provide for the election * * * of * * * district attorneys * * * and shall prescribe their duties and fix their terms of office. It shall regulate the compensation of * * * district attorneys * * * in the respective counties and for this purpose may classify the counties by population. * * *' Prior rulings dispose of defendant's argument of unconstitutionality; we have consistently upheld the validity of the system; defendant now offers no new reason to invalidate it. (Longan v. County of Solano (1884) 65 Cal. 122, 3 P. 463; Sanders v. Sehorn (1893) 98 Cal. 227, 33 P. 58; Summerland v. Bicknell (1896) 111 Cal. 567, 44 P. 232; Johnson v. Gunn (1906) 148 Cal. 745, 84 P. 665.) We similarly reject defendant's contention that the classification system constitutes local or special legislation under section 25 of article IV, or that it lacks general operation within the meaning of section 11 of article I. (Summerland v. Bicknell, supra; Johnson v. Gunn, supra.)

We find no validity in defendant's second contention that the Legislature could not validly restrict the private practice of law by the district attorney of Madera County in light of the Legislature's concurrent omission of a like restriction upon the district attorneys of other counties. Government Code sections 28101-28158 disclose that the Legislature has not restricted the practice of law by the district attorney in some counties while in others it has either totally or partially prohibited such practice. Although the population of the counties and imposition of a restriction on the private practice of law are not necessarily correlated, the legislative enactment shows a tendency toward such a restriction in the more populous counties.

Notwithstanding this lack of uniformity, the challenged provision meets the test of constitutionality. It is true that article XI, section 5, specifically permits the classification of counties for the regulation of compensation of specific officers and that it does not expressly authorize a proscription of their duties on that basis. The familiar rules, however, require that 'The Constitution and the statute are to be read together,' and that if 'the terms of a statute are by fair and reasonable interpretation capable of a meaning consistent with the requirements of the Constitution, the statute will be given that meaning, rather than another in conflict with the Constitution.' (County of Los Angeles v. Legg (1936) 5 Cal.2d 349, 353, 55 P.2d 206, 207.) Pursuant to this imperative, and for the reasons stated below, we hold that the restriction on the private practice of law goes to the compensation, rather than the duties, of the office of the district attorney of Madera County.

The duties of the district attorney, as fixed by the Legislature, apply uniformly throughout the state. (Gov.Code, §§ 26500-26529.) The restriction on the private practice of law does not augment or reduce the duties on the district attorney of Madera County; these remain constant; section 28135 merely applies to work beyond and outside of the duties of the district attorney and proscribes such an external area of work. As a part of the compensation of their offices, the Legislature permits certain district attorneys to engage in the private practice of law, thus giving them an opportunity to increase their total compensation. By prohibiting such activity, the Legislature has determined that the district attorney of Madera County should not enjoy this privilege; the effect of the legislation is to limit his compensation to the official figure. In this connection we note that when the Legislature first enacted this restriction upon the district attorney of Madera County, it simultaneously increased his salary from $7,500 to $10,000 per annum. (Stats.1957, p. 2921, amending Gov.Code, § 28134, the section then applicable to Madera County.)

Finally, in upholding the validity of the legislation, we find additional support in the long-standing practice of the Legislature, both before and after the 1933 amendment to article XI, section 5, to impose restrictions on the private practice of law by district attorneys. (See, e. g., Stats.1921, p. 1085.) This legislative construction of the constitutional provision is of 'very persuasive significance' to the courts in sustaining the constitutionality of the statute. (Delaney v. Lowery (1944) 25 Cal.2d 561, 569, 154 P.2d 674; Reynolds v. State Board of Equalization (1946) 29 Cal.2d 137, 173 P.2d 551, 174 P.2d 4.)

We turn to the second issue before us; the right of defendant to receive his salary. We do not believe that our determination that the Legislature has prohibited the defendant from engaging in the private practice of law should result under the present circumstances in defendant's proscription from the receipt of his salary.

Plaintiff contends that the statutory inhibition upon the private practice of law operates as a condition precedent or condition concurrent upon the right of the district attorney to receive his salary; that by failing to abide by the restriction, the district attorney forfeits that right. Although the Legislature could have attached such a condition to the receipt of the salary, we do not believe that the satatutory language does so here.

To adopt the construction urged by the plaintiff would cause a forfeiture which would work a harsh and unjust result; we are reluctant so to construe the statute in the absence of a clear indication by the Legislature that it so intended. (Metropolitan Water Dist. v. Adams (1948) 32 Cal.2d 620, 197 P.2d 543; Bakkenson v. Superior Court (1925) 197 Cal. 504, 241 P. 874.) To withhold all salary...