PEOPLE ex rel. CHEEVER vs. MICKLE

PEOPLE ex rel. CHEEVER vs. MICKLE. Fourth District Court for San Francisco Co., Feb. T., 1858. PUBLIC OFFICERS — SALARY. In 1850 a law was passed creating the office of dockmasters, and providing for the payment of their salaries. In March, 1857, a law was passed abolishing the office, but continuing the then incumbents in office, until January, 1858. In April, 1857, the law providing for the payment of the dockmasters was repealed — no provision being made for the then incumbents. The latter continued to discharge the duties of the office until January 1st, 1858. The auditor refusing to audit their claim for salary, they brought suit for a peremptory mandamus, to compel him to’-do so. Held, that there was no law making it the duty of the auditor to audit their claims —mandamus refused. On rule to show cause why a peremptory mandamus should not issue. The requisite facts are fully stated in- the opinion. Fabens, for plaintiff. Tracy, for defendant. [MAJORITY — HageR, J.] HageR, J. — I can find no law authorising the payment of the salaries claimed to be due from the city and county of San Francisco, o the plaintiffs as dockmasters. It is true, by the act of 1857, .they were continued as legal officers until the first of January 1858, when, according to the provisions of existing laws, one harbor master is substituted in their place ; but by the subsequent act of April 18th, 1857, the law fixing and authorising the payment of their salary, was repealed — this was conceded on argument. There is much confusion and conflict in the various statutes relating to dock and harbor masters, and although plaintiffs ought to be compensated for the services they have performed by authority of law, yet I am unable to discover any existing law fixing the amount of their salary, or that will authorise the auditor to allow or audit their claim for any particular sum. In other words, the auditor has not refused to perform a duty enjoined upon him by law, in declining to allow or audit plaintiffs’ claim. The motion to make the writ peremptory must, therefore, be denied. If the wife has homestead rights, the foreclosure and sale cannot divest them, if she was not made a party, and if not a party the writ of assistance cannot run against her. If she is unlawfully interfered with in her title and possession, she has. her right of action for redress and it is unnecessary for a court of equity to interfere. It would be manifestly unjust to restrain defendants from proceeding against the whole lot; and as plaintiffs have asked greater relief than they are entitled to, and I am unable from any facts before me to determine what, if any, rights of the wife will be jeopardised by anything defendants threaten to do, this injunction must be dissolved. The complaint at least ought definitely to show that the wife has such a homestead as is recognised by the laws of this state, and a particular description of it should be given. The injunction must be dissolved.