No. 8995. KINSEY, County Clerk, etc. v. KELLOGG, Auditor, etc. In Bank. Filed March 21, 1884. COUNTY CLERK OF HUMBOLDT COUNTY, SALARY OF--On February 28, 1876, the offices of county clerk, auditor and recorder of Humboldt county were united in the same person. On that date the legislature passed an act fixing the annual salary of the person filling such offices at five thousand dollars. Subsequently Humboldt county was organized as a county of the second class, and the offices of auditor and recorder were separated from that of county clerk. The annual salary of the county clerk was thereupon fixed by the board of supervisors at two thousand seven hundred dollars. Held that the act of February 28, 1876, was intended to regulate the salary of such officers only while they were united in the same person. That when the organization of the county government was changed, and the offices were separated, no one of the three officers was entitled to receive the salary intended for the three; and as the act did not provide for the separation of the three offices, it became inoperative when such separation occured. THE SAME.-As there was no operative law fixing the compensation of the county clerk after Humboldt county became organized as a county of the second class, the board of supervisors had authority to fix the compensation of that officer. APPEAL from a judgment of the superior court for Humboldt county entered in favor of the defendant. The opinion states the facts. S. M. Buck for the appellant. J. J. De Haven for the respondent. MCKINSTRY, J. February 28, 1876, the following legislative act was approved by the governor: "SECTION 1. The county clerk of Humboldt shall receive for all services required of him as county clerk and ex officio clerk of the district court, probate court, board of supervisors, board of equalization, auditor and ex officio county recorder, a salary of five thousand dollars per annum, which salary shall be in full for all services required of and performed by him, and it shall be paid monthly out of the county treasury. He shall collect and safely keep all fees of whatever kind or nature allowed him by law for services rendered by him in his several official capacities, and upon the first Monday of each and every month, shall pay the same over to the county treasurer of said county, and at the same time shall make out and file with said treasurer a full and accurate statement under oath, of all fees, of whatever kind or capacities, for the preceding month. SEC. 2. This act shall take effect and be in force from and after the first Monday in March, eighteen hundred and seventy eight. And all acts and parts of acts, so far as they conflict with the provisions of this act, are hereby repealed:" Stat. 1875-6, p. 81. By the census taken in the year 1880, Humboldt was found to contain a population exceeding eight thousand and less than twenty thousand inhabitants. The county was organized as a county of the second class, and since July 1, 1881, has had at all times a board of supervisors consisting of five members, and other officers prescribed for counties of the second class: Pol. Code, 4006, 4007, 4025. The board of supervisors did not, at any time prior to the election of plaintiff as county clerk, as hereinafter mentioned, unite or consolidate the office of county clerk with those of recorder or auditor, or either of them. The board of supervisors, by an ordinance duly adopted on the eighth day of July, 1882, united and consolidated the offices of recorder and auditor, and caused such ordinance to be duly recorded and published for three months before the general election held November 7, 1882: Pol. Code, 4106. At such general election plaintiff was elected county clerk and defendant recorder and ex officio auditor of Humboldt county. Plaintiff entered upon the discharge of the duties of county clerk on the first Monday of January, 1883, and defendant commenced to act as recorder and auditor on the eighth day of January, 1883, and has ever since discharged the duties of said offices. On the eighth day of February, 1883, the board of supervisors of Humboldt fixed and determined the annual salary of the clerk at two thousand seven hundred dollars. After plaintiff had served one month as county clerk, and on the eighth of February, 1883, he applied to defendant for a warrant on the treasury of the county in the sum of four hundred and sixteen dollars and sixty-six cents, as the amount of his salary for the preceding month. Defendant refused to draw the warrant for the amount demanded, or, as alleged in the complaint, "for any amount whatever." There is, however, no averment in the complaint that plaintiff demanded a warrant for a less sum than four hundred and sixteen dollars and sixty-six cents ($416.66), and in his answer defendant offers to draw a warrant for plaintiff's salary at the rate of two thousand seven hundred dollars per annum. The court below denied the writ of mandate and dismissed plaintiff's application therefor. The cause was argued here by counsel for both parties on the assumption that the matters set forth in the answer as facts are true. On the eighteenth day of March, 1876, the act following was approved: "SECTION 1. Humboldt county is hereby constituted a county of the second class, within the meaning of and for the purposes designated by section four thousand and twenty-two of the Political Code. "SEC. 2. The Board of Supervisors of Humboldt county must redistrict said county into five supervisor districts, as nearly equal in population as may be. At the first election hereafter at which any supervisor is by law to be elected, supervisors must be elected for each new district to be created by virtue hereof: Stats. 1875-6, p. 333." It is contended on the part of plaintiff that the statute of February 28, 1876, on which he relies, provides for a salary to be paid the county clerk "in full for all services required of and to be performed by him," and that the specification of duties which precedes this provision can not take from the language quoted any of its force or meaning. It is also urged that because some duty formerly performed by the clerk has, without the consent of that officer, been imposed by an inferior board upon another person, it does not follow that such board can deprive the clerk of any portion of his salary. That the law only authorized the supervisors to fix the compensation of a county officer, not fixed by the Political Code, or by general or special law: Pol. Code, 4046. On the part of defendant (respondent here) it is contended: 1st. The offices of clerk, recorder and auditor are distinct offices, though held by the same person, by virtue of an election to one: People v. Dennick, 20 Cal. 94. 2d. At the date of the passage of the act of 1876, the same person was required to fill all the offices named in the county of Humboldt, and, in view of the existing state. of facts-taken in connection with the language of the act itself the intention of the legislature is manifest to fix the compensation of five thousand dollars, not for the discharge of the duties of clerk alone, but for the discharge of the duties of recorder and auditor as well. 3d. The clerk having ceased to be recorder and auditor, the law which fixed a compensation for all his services as clerk, recorder and auditor, must be held to have ceased to have a practical operation. A law must be applied according to its manifest intent, and a thing, even within the letter, is without the statute, if without the intention. We think the positions of defendant well taken. In 1810 the congress of the United States passed an act fixing the salary of Consul at Algiers at four thousand dollars a year. Algiers became a province of France, and most of the powers and duties of the Consul at Algiers, as prescribed by the act which authorized his salary, ceased. In Mahoney v. United States, the Supreme Court of the United States said: "When the act was passed Algiers was a part of one of the Barbary states of that name, and it is evident from an examination of its provisions, that the act was intended to apply to a consulate at that place, only so long as it belonged to one of the Barbary powers": 10 Wall. 65. Here, when the act of 1876 was passed, there was a person who was discharging the duties of clerk, recorder and auditor, and, unless subsequent legislation should require otherwise, one person would continue to fill the three separate offices. It was to this condition of things that the law was made applicable, and the compensation provided by it was provided as compensation to the clerk, the recorder, and the auditor. The law did not determine how much should be paid to each of the three officers-a matter of no consequence so long as the three officers were in one man. But when the organization of the county government was changed, and the person who was clerk was not auditor nor recorder, it is clear that no one of the three officers was entitled to receive the compensation intended for the three; and as the act of 1876 did not provide for the event, the act, by force of its own expressions, became inoperative when the event occurred. As there was no operative law fixing the compensation of the county clerk after Humboldt became organized as a county of the second class, the board of supervisors had authority to fix the compensation of that officer: Pol. Code 4046, sub. 18. Judgment affirmed. Ross, J., SHARPSTEIN, J., THORNTON, J., MYRICK, J., MORRISON, C. MIKE E, J., Concurred. No. 8701. KIMBALL V. STORMER. In Bank. Filed March 21, 1884. FINDING AS TO ADVERSE POSSESSION-EJECTMENT-In an action of ejectment, where the plaintiff alleges title in himself, and the defendant relies upon a title obtained by adverse possession, a finding that the defendant has such title, if sustained by the evidence, is sufficient, without finding upon the question whether the plaintiff had or had not title originally. FAILURE TO FIND UPON A MATERIAL ISSUE IS GROUND FOR REVERSAL-IN THE ABSENCE OF FINDINGS THE Appellate COURT WILL PRESUME that the same were waived, unless the contrary appears by a bill of exceptions. This presumption cannot arise where the lower court filed a writing designated as its "decision," and intended to be a finding upon a material issue. TITLE BY ADVERSE POSSESSION CAN NOT BE ACQUIRED by occassionally cutting up dead timber, felling trees and removing wood from the land. ADVERSE POSSESSION-COLOR OF TITLE-POSSESSION-A defendant who claims under color of title a larger tract, which includes the land to which the plaintiff has shown title in fee, cannot establish an adverse possession as to the plaintiff's land, which has remained vacant and unoccupied, by proving an actual possession of a portion of the larger tract, when such possession does not extend to any of the land claimed by the plaintiff. Especially is this the case when it appears that the defendant had not asserted an absolute and unqualified right to such plaintiff's land for the time required by the statute of limitations. APPEAL from a judgment of the superior court for Colusa county entered in favor of the defendant, and from an order deny the plaintiff a new trial. The opinion states the facts. Goad and Belcher, for the appellant. A. L. Hart, for the respondent. MCKINSTRY, J. The appeal is by plaintiff from a judgment and order denying a new trial in an action of "ejectment. The complaint is in the usual form; the answer denies the averments of the complaint, and avers that the cause of action is barred by sections 318 and 319 of the code of civil procedure. A jury having been waived the action was tried by the court. Within thirty days after the cause was submitted for decision the court filed with the clerk a paper writing in words following: DECISION. Superior Court, County of Colusa. Thos. E. Kimball, v. E. I. Stormer. Under the testimony introduced I am of the opinion that, at the time this action was brought, the defendant had acquired a title to the premises in controversy by virtue of the provisions of the statute of limitations. Judgment is therefore ordered for the defendant." (Signed by the judge.) Thereupon judgment was entered; (Title of court and cause): day of , 1881, plaintiff and defendant appeared by their respective counsel, and the cause was tried by the court without a jury, a jury having been waived by the parties to said action. The evidence of plaintiff and defendant was introduced in due form, and the cause subsequently argued to the court by the respective counsel, and then taken under consideration by the court; and the court having fully considered said cause, and being fully advised as to the law and the evidence, makes and files its written decision in favor of the defendant and against the plaintiff, and orders judgment accordingly. Wherefore," etc. The code of civil procedure provides: "Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk, within thirty days after the cause is submitted for decision. In giving the decision the facts found and the conclusions of law must be separately stated. Judgment upon the decision must be entered accordingly;" Secs. 632-3. From the decision" filed it is apparent the court below intended to find that defendent had been in adverse possession for more than five years, and therefore, as a conclusion of law, that he was entitled to judgment. Finding thus, the court deemed it unnecessary to find whether the plaintiff did or did not have title prior to the running of the statute. If the finding as to adverse possession had been sufficient, and the evidence had sustained it, we would affirm the judgment, holding that the question whether the plaintiff had or had not title originally was immaterial. But, as we shall see, the evidence does not justify the finding in favor of defendant upon the plea of the statute of limitations. The case is to be treated therefore as one in which the court below, upon insufficient evidence, found that the defendant had acquired title by adverse possession, but failed to find whether the plaintiff had title and right of possession, independently of the question of adverse possession. We are not prepared to say that the evidence clearly and unmistakably shows the plaintiff had no title to the premises in controversy, and that defendant is the owner of them. We expressly decline to determine that question, however, leaving it to be passed upon by the court below. It has been so often held here that when the court below has failed to find upon any material issue made by the pleadings the judgment must be reversed, that cases need not be cited as authority on that point. It is no objection to the reversal of the judgment, for want of finding upon a material issue, that the finding with respect to the statute of limitations is not in form a sufficient finding. If the court, in addition to the finding with respect to the limitation, had found |