Milner

If the decision, filed August 4th, in People v. Toal, ante, p. 333, from which I dissented, is to stand, the judgment in this case must be affirmed. For, under the doctrine there announced, all the provisions of the present charter of Stockton relating to its municipal court are null and void. But if the validity of those provisions is assumed, I cannot see how the conclusion can be avoided that the plaintiff is entitled to the compensation provided in the charter. It is not increasing his salary as city justice to pay him the salary of another office, the duties of which are cast upon him by a new appointment.

Behearing denied.

Application to the superior court of the county of San Joaquin for a writ of mandate requiring the defendants, the mayor and clerk and comptroller of the city of Stockton, to issue a warrant upon the treasury of that city in favor of the plaintiff, who is city justice of the peace in said city, for the sum of one hundred dollars, as and for his salary as judge of the municipal court, for the month of December, 1889. Upon a hearing of the cause the court denied the writ, and entered judgment for defendants, from which plaintiff appeals.

The case is argued and presented as if it involved the question of the legal existence of the municipal court of the city of Stockton, and a reconsideration of the question passed upon in Brooks v. Fischer, 79 Cal. 173 , Ex parte Ah You, 82 Cal. 339 , and People v. Toal, ante, p. 333. In our judgment no such question is involved.

The sole question in this case is, whether or not the plaintiff, who is regularly drawing and receiving his salary of two thousand dollars per annum, as city justice of the peace, is entitled to draw and receive an additional salary of twelve hundred dollars per annum as judge of the municipal court. In 1884 the city of…