Doughterty

In the former decision of this case (post,' p. 626), the court, in its opinion, held that the order of the board of supervisors of Marin County, upon which the respondent bases his right to the relief which he asks, was, in effect, an increase of the compensation of the county clerk of Marin County, made after his election to such office, and was for this reason void, as being in conflict with section 9 of article XI. of the constitution of this state; and secondly, that section 211 of the County Government Act, as amended in 1887 (Stats. 1887, p. 207), under which the board of supervisors acted in making such order, was invalid, as it made the County Government Act, of which it formed a part, lacking in that uniformity of operation which is required by section 11 of article I. of the constitution of this state. It being supposed that the decision thus made would affect officers in other counties who had not been heard, and that the question presented for decision was of sufficient importance to justify it, it was deemed proper by a- majority of the members of the court to grant a rehearing, in order to give an oppor *604 tunity for further argument. The case has been re-argued,…

At the first presentation of this case, I was impressed with the conviction that very serious consequences must flow from any conclusion the court might reach, and have therefore given it the most careful and anxious consideration. It was apparent that so important a provision of the County Government Act as that which is in question here could not be held unconstitutional without producing disorder and confusion in the public business of a number of the most populous counties of the state, besides injuriously affecting the pecuniary interests of the deputy county officers, whose compensation it was intended to secure. It was therefore with great reluctance that I yielded to the conviction that, upon any construction of the proviso *608 under which the respondent claims, it could not be upheld without disregarding the manifest intention of the constitution. Actuated by the same feeling, I willingly united in the order for a rehearing, hoping that a fuller discussion of the case by additional counsel representing the state and the several counties affected by the decision might lead to the discovery of some happier solution of the difficulty.

I regret to say, however, that after…

I dissent. I have not the time, and there is no necessity, to state my views at large on the questions here involved. I will state some of them, however, briefly.

1. The undisputed general rule is, that all presumptions are in favor of the constitutionality of statutes; that before an act of a co-ordinate branch of the government can be declared invalid by the judiciary for the reason that it is in conflict with the constitution, such conflict must be clear, positive, abrupt, and unquestionable; and that in case of fair, reasonable doubt of b's constitutionality, the statute should be upheld. I state this old rule5 here because I think it particularly applicable to the case at bar; for at best, the unconstitutionality of the statute here in question is certainly not so clear as to be seen without a good deal of microscopic aid.

2. The amendment of 1887 was not, in my opinion, in violation of section 9 of article XI. of the constitution, which provides against increase of compensation “ after election.” Bonneau, the county clerk, whose deputy Dougherty, the plaintiff, is, was elected after the *624 passage of said amendment; and lie did not “ contract,” as contended by appellant,…