stated where a crime may be punishable by imprisonment in the state prison, and also by fine and imprisonment in the county jail in the discretion of the court, such crime shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison. The legislature has designated the classification, and the means whereby such classification shall be ascertained. The distinction between a judicial act and a legislative act has been defined by Judge Field as follows: "The one determines what the law is and what the rights of the parties are with reference to transactions already had. The other prescribes what the law shall be in future cases arising under it. Wherever an act undertakes to determine a question of right or obligation or of property as the foundation on which it proceeds, such act is to that extent a judicial one, and not the exercise of legislative functions (Sinking Fund cases, 99 U. S. 700). And our own supreme court has said: "Legislative power prescribes rules of conduct for the government of the citizen or subject, while judicial power punishes or redresses wrongs growing out of the violation of rules previously established. The distinction in short lies between a sentence and a rule." (Ex parte Shrader, 33 Cal. 279.)

In the case at bar the court will be called upon to declare the law and impose the penalty under the section passed by the legislature making the act a crime. The legislature has vested discretion in the court, but has not authorized the court to determine as to whether or not certain acts would constitute a crime.

[3] It is further claimed that the section violates article I, section 6, of the constitution of the state, which prohibits cruel and unusual punishments. It is hardly necessary to discuss this contention, even if it could be raised by the prisoner, who may never be convicted, and even if he should be convicted might receive a sentence of 30 days in the county jail. Imprisonment in the county jail or in the state prison is not unusual; in fact it is the most common mode of punishment in all civilized countries. It is not cruel in the sense used in the constitution. Cruel and unusual punishments are punishments of a barbarous character and unknown to the common law. The word, when it first found place in the Bill of Rights, meant not a fine or imprisonment or both, but such punishment as that inflicted by the whipping post, the pillory, burning at the stake, breaking on the wheel, and the like; or quartering the culprit, cutting off his nose, ears or limbs, or strangling him to death. In was such severe, cruel and unusual punishments as disgraced the civilization of former ages, and made one shudder with horrer to read of them (Cooley on Constitutional Limitations, 7th ed., p. 471 et seq.; State v. McCauley, 15 Cal. 429; Whitton v. State, 133 Ind. 404; State v. Williams, 77 Mo. 310). The legislature is ordinarily the judge of the expediency of creating new crimes, and prescribing the punishment, whether light or severe (Com. v. Murphy, 165 Mass. 666; Southern Express Co. v. Com., 97 Va. 59).

Counsel for petitioner have devoted many pages of their brief to an analysis of the grammatical construction of the section of the Penal Code in question, contending that it is a complex sentence of over 30 lines, and of such phraseology as to make it impossible to

determine what particular acts are necessary to be grouped together to constitute the crime intended to be denounced by the section. [4] It is sufficient to say that the complaint charges the prisoner with doing certain acts which are prohibited by the section, and which if proven will subject him to a punishment thereunder. A person of common understanding would by reading the section and reading the complaint know that the defendant was charged with certain acts prohibited by the section. The provisions of the Penal Code must be construed according to the fair import of their terms with a view to effecting their object and to promote justice (sec. 4). Of course, if the act charged is one which is not a crime under any section of the Code the prisoner would have to be discharged, but this is not such case.

It is not necessary to discuss other questions, as we do not deem any of them of sufficent importance to justify us in discharging the prisoner.

We conclude that the section of the Penal Code is constitutional, and that the complaint states an offense thereunder.

Let the prisoner be remanded.

We concur:

HALL, J.

KERRIGAN, J.

COOPER, P. J.

Civil No. 705. Second Appellate District. October 25, 1909. W. R. NEWMAN, Petitioner, v. CAL D. LESTER, Auditor of Orange County, California, Respondent.

[1] PUBLIC OFFICERS-COMPENSATION OF DEPUTIES-STATUTES ALLOWING FIXED SALARIES INCREASE DURING TERM OF OFFICE-CONSTITUTIONAL LAW.-Where the statute provides a fixed salary for a public officer and a separate allowance for expenses of his office, or a fixed salary for the officer and a fixed salary for a certain number of deputies or clerks, all payable out of the county treasury, an increase of such separate allowance for expenses or for deputies, whether in the number of deputies or the amount paid to each, is not a violation of section 9 of article XI of the constitution, prohibiting increases of compensation of public officers during their term of office.

[21 ID.-ID.—ID.—ID.—ID.-ADDITIONAL DEPUTY COUNTY ASSESSOR -COUNTIES OF FIFTEENTH CLASS-CONSTITUTIONAL APPOINTMENT.— The appointment of an additional deputy county assessor by the assessor of a county of the fifteenth class, during his term of office, uader the provision of section 4244 of the Political Code, as amended in 1909, authorizing such assessors to appoint an additional deputy, whose salary is fixed by the amendment, and made payable out of the county treasury, is not in violation of section 9 of article 11 of the constitution forbidding any increase of compensation of public officers after their election, in view of the provisions of such section allowing such assessor a fixed salary for himself.

For Petitioner-Williams & Rutan.

For Respondent-S. M. Davis, District Attorney of Orange County; J. D. Fredericks, District Attorney of Los Angeles County, Amicus Curiae.

BY THE COURT.

Application for writ of mandate to compel respondent as auditor of Orange county to issue to plaintiff a warrant for one hundred

dollars, claimed to be due him as salary as deputy county assessor for the month of May, 1909.

In the classification of counties made by section 4006 of the Political Code in 1907, Orange county is a county of the fifteenth class, and by section 4244, as enacted in that year, the provision relating to salaries for the assessor's office was as follows: "8. The assessor, thirty-five hundred dollars per annum; provided, that in counties of this class there shall be seven field deputy assessors, who shall be appointed by the assessor of said county, and who shall hold office from twelve o'clock meridian from the first Monday in March of each year up to twelve o'clock meridian of the first Monday of July of each year; the salaries of each of said seven deputy assessors herein provided for is fixed at the sum of one hundred dollars per month, to include horse hire and traveling expenses for each month during which they hold office as herein provided, which said salaries shall be paid by said county at the same time and in the same manner and out of the same fund as the salary of the assessor; provided, that all commissions shall be paid into the county treasury." This section, so far as it affects the matter before us, was but a re-enactment of section 172 of the County Government Act as amended in 1905 (Stats. 1905, p. 430).

In 1909 this provision of section 4244 was amended by changing the number of deputies from "seven" to "eight", and further providing: "One of said deputy assessors shall hold office for twelve months of each year, at a salary of one hundred dollars per month, whose duty shall be to keep an account of all transfers of property in said county during the year, and to assist in the assessment of property." This amendatory act was made to take effect immediately (Stats. 1909, p. 730), and petitioner was appointed by the assessor of Orange county as the deputy so provided for and demanded a warrant for his salary for the month of May, 1909, as such deputy, and his demand was refused by respondent.

In support of his refusal, respondent contends that the payment of the demand would be a violation of section 9 of article XI of the constitution, being an increase of compensation of the county assessor during his term of office. That the term of office for which the assessor was elected began January 7, 1907, and that the salaries and compensation for all official services rendered by that office are fixed and determined by the County Government Act as amended in 1905, and cannot be increased until the expiration of the four years for which the county assessor was elected. Petitioner meets this contention with two arguments: First, that the allowance for the additional deputy does not increase the compensation of the assessor, because his salary remains the same ($3600); and, second, that it cannot be contended that the work to be done by the assessor is reduced as the statute provides other and additional services to be performed by the deputy created by the act of 1909 which are not necessarily within the general duties provided to be performed by the assessor. The brief of the amicus curiae presents chiefly an argument ab inconvenienti, etc., to support the position of petitioner. All parties agreeing that the exact question has never been directly passed upon by any of the appellate courts of the state.

The argument based upon the disastrous results which would follow a holding that the law was unconstitutional appears to be fully answered in the concurring opinion of Beatty, C. J., in the case of Dougherty v. Austin, 94 Cal., p. 607, and we do not think much stress can be laid upon the contention that the provision for the additional deputy in effect created a new office with new duties. It is clear that the petitioner's right to any compensation must be determined upon the theory that he is a deputy in the assessor's office doing the work of the assessor. County offices are not created by special act fixing a salary for them, but by a general law enumerating the offices so designated. (Pratt v. Browne, 135 Cal. 649.)

The concurring opinion of Chief Justice Beatty, above referred to, approves a distinction drawn by the supreme court of Illinois in Daggett v. Ford Co., 99 Ill. 334, between the rule applicable to statutes in which the principal in the office is allowed a lump sum to cover his own compensation and his expenses for clerk hire or deputies, and that applied to statutes by which the officer is allowed a certain amount for his personal compensation and a certain amount for the expenses of his office. Under a constitutional provision that the compensation of no officer shall be increased or diminished during his term of office, it was held that where the "lump sum" system existed, to increase or diminish the allowance during the term would be a violation of the constitutional provision, while under the other system an increase of the allowance of the amount for expenses would not. Or, as said by Chief Justice Beatty, "In other words, the supreme court recognized this distinction between the allowance for compensation and for clerk hire, etc., when separately fixed:-that the latter could, but the former could not, be increased or diminished during the officer's term." Holding to this view, the chief justice concurred in the decision in Dougherty v. Austin, from which, as well as the other mention of the statute then before the court, we conclude that the provision as to Marin county in the County Government Act of 1887 placed it among those counties as to the officers of which a lump-sum allowance was made.

The distinction so adopted by the Chief Justice is not made a part of the leading opinion in bank, or the department opinion, which is approved by the court in bank in the DoughertyAustin case, but it is reasserted in Tulare County v. May, 118 Cal. 303, p. 308, and the constitutionality of an act containing both methods of compensation is declared. It is said in this case: "There are two rules for the compensation of deputies in the different counties of the state. In most of the classes a lump sum is allowed to the principal, out of which he is required to pay his deputies; in a smaller number of classes,-including the eleventh-the principal is allowed a fixed salary, and certain deputies are allowed fixed salaries"; in both cases the salaries are to be paid out of the county treasury. The exercise of the legislative power in so classifying the counties in this manner for the purpose of fixing the compensation of county officers is declared to be constitutional, because "under either rule a compensation proportionate to duties may be secured".

In the case of Tulare v. May, it was held that where there was

a provision in the statute for the appointment by a county officer of a clerk or deputy at a fixed salary upon the happening of a specified contingency, and the officer appointed such deputy upon the happening of the contingency, which was after the commencement of the term of office of the principal, this was not an increase of compensation of such officer in violation of section 9 of article XI of the constitution. The court reviewed the opinions in Welsh v. Bramlet, 98 Cal. 220, and Walser v. Austin, 104 Cal. 128, and says the latter rests upon the former and declares that the portion of the former opinion in conflict with the views expressed in the Tulare v. May opinion was not necessary to the decision in the Welsh v. Bramlet case. The decision in Farnum v. Warner, 104 Cal. 677, which is distinguished from that in Welsh v. Bramlet, is accepted as authority. The reasoning in the Welsh-Bramlet opinion, which is distinguished and disapproved, related to a clause in the County Government Act of 1891 by which the district attorneys in counties of the twenty-sixth class were permitted to appoint an assistant and a deputy for each of whom the act provided a fixed salary. It was held that such a provision was violative of the constitutional prohibition against special legislation, and also of section 9 of article XI. [1] We are of opinion that its weight as authority upon the point last mentioned is destroyed by the opinion in Tulare v. May, and that the effect of the foregoing decisions and opinions is to adopt the distinction drawn by the Illinois supreme court as the rule of construction in this state. That is to say, that, where the statute provides a fixed salary for the officer and a separate allowance for expenses of his office (Kirkwood v. Soto, 87 Cal. 394); or a fixed salary for the officer and a fixed salary for a certain number of deputies or clerks, all payable out of the county treasury, an increase of such separate allowance for expenses or for deputies, whether in the number of deputies or the amount paid to each, is not a violation of the constitutional provision that "The compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office". (Const., sec. 9, art. XI.)

[2] The petitioner in this application comes within the rule stated and is entitled to the salary claimed by him. It is, therefore, ordered that a writ of mandate issue in accordance with the prayer of the petition.

Crim. No. 98. Third Appellate District. October 25, 1909. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. MICHEL CARANTAN, Defendant and Appellant.

[1] CRIMINAL LAW-MURDER-IMPEACHING WITNESS-CREDIBILITY -PROPER INSTRUCTION.-A modification of a requested instruction in a criminal case, that "a witness may be impeached by the party against whom he was called by contradictory evidence, or by evidence that his general reputation for truth, honesty or integrity is bad". by the addition of the clause "and the jury are the exclusive judges of his credibility", is not prejudicial.

[2] ID.-ID.-EVIDENCE-JUDGES OF CREDIBILITY-QUALIFICATION— "SUBJECT TO CONTROL OF COURT"-ABSENCE OF ERROR.-An instruction,