an account is orally stated, the statute begins to run as to the cause of action on the account stated from the date thereof. Auzerais v. Naglee, 15 Pac. Rep. 371, 74 Cal. 60; Kahn v. Edwards, 16 Pac. Rep. 779, 75 Cal. 192,-followed.

Commissioners' decision. Department 2. Appeal from superior court, Alameda county; F. W. Henshaw, Judge.

Action by Andrew Baird against J. F. Crank. From a judgment for plaintiff, and an order denying a new trial, defendaut appeals. Affirmed.

O'Brien & Daingerfield, for appellant. J. M. Haven and C. W. Cross, for respondent.

BELCHER, C. Plaintiff commenced this action on the 18th day of May, 1889, to recover a balance due upon an account stated. It is alleged in the complaint that prior to the 3d day of July, 1888, at the city and county of San Francisco, plaintiff had done and performed for defendaut, at his special instance and request, a large amount of services and labor, for which defendant was justly in. debted to plaintiff in a large sum of money, and that on the day named it was agreed between the parties that such services were reasonably worth the sum of $5,000, and defendant agreed to pay plaintiff that sum therefor; and also that on the day named, at San Francisco, an account was stated between the plaintiff and defendant, and upon such statement a balance of $5,000 was found due to the plaintiff from the defendant, which sum the defendant then and there agreed to pay plaintiff; that defendant had not paid the same, nor any part thereof, except the sum of $900, which he paid on the 30th of November, 1888. The answer of defendant denies all the averments of the complaint, and as to the $900 alleges that plaintiff "harassed, pursued, and annoyed this defendant to such an extent that said defendant, to buy his peace, and without consideration, and not at all because he was under any liability to the said plaintiff, paid him the said sum of $900, in the complaint mentioned." It further alleges that each of the causes of action set up in the complaint is barred by the provisions of section 339, subd. 1, Code Civil Proc. After trial the court found the facts of the case to be as follows: "First. That the plaintiff entered upon the service and employment of the defendant, at his special instance and request, in the month of February, 1885, and continued such service and employment to the 20th day of January, 1887; that said employment was indeterminate as to duration, and a continuous employment to said 20th day of January, 1887; and no right of action accrued to plaintiff against defendant by reason thereof, prior to the 20th day of January, 1887. Second. That on the 3d day of July, 1888, it was agreed between the said plaintiff and said defendant that such services were reasonably worth the sum of five thou sand dollars, and the defendant on said day promised to pay to the plaintiff the said sum of five thousand dollars. That on said day two years had not elapsed

since a cause of action accrued in favor of plaintiff against defendant for or on account of said services. Third. That on the 3d day of July, 1888, an account was stated between the plaintiff and defendant, at San Francisco, California, and upon such statement a balance of five thousand dollars was found due to the plaintiff from the defendant for and on account of said labor and services theretofore done and performed by the plaintiff for the defendant; and at said time and place the defendant agreed to pay the plaintiff the said sum of five thousand dol lars, and the plaintiff agreed to accept the same in full payment of all services theretofore rendered by him to defendant. That at said time two years had not elapsed since a cause of action accrued in favor of plaintiff against defendant for or on account of said services so rendered by plaintiff to defendant as aforesaid. Fourth. That on the 30th day of November, 1888, the defendant paid to the plaintiff, on account of said sum of $5,000, the sum of $900, but that no other sum has been paid by the defendant thereon. Fifth. That the plaintiff did not voluntarily undertake to perform, nor did he voluntarily perform, any services for the defendant. Sixth. That the defendant did not, to buy his peace, and without consideration, pay to plaintiff the sum of $900, nor any other sum of money; nor did plaintiff receive from defendant any sum of money whereby he became indebted to defendant. Seventh. That plaintiff's causes of action against the defendant were not, nor was any of them, barred by the provisions of section 339, subd. 1, of the Code of Civil Procedure of California, or any other provision of law." Upon these facts the court gave judgment for the plaintiff according to the prayer of his complaint, from which, and from an order denying his motion for a new trial, defendant appeals.

The notice of motion for new trial stated that the motion would be made upon a bill of exceptions to be subsequently prepared, and on the grounds that the evidence was insufficient to justify the decision, that the decision was against law, and errors in law occurring at the trial and excepted to by defendant. The specifications attached to the bill of exceptions subsequently settled and filed were to the effect-First, that there was no evidenc that any account was ever stated between the parties, or that there was any agreement between them that plaintiff's services were reasonably worth the sum of $5,000, or any sum whatever; and, second, that the evidence shows that no acknowledgment or promise in writing was made by defendant, and also shows that at the time of the commencement of the action the plaintiff's cause of action was barred by the statute of limitations, as pleaded in the answer. The specifications do not assail the first, fourth, fifth, and sixth findings, and the facts therein stated must be accepted as true. It follows, therefore, that the plaintiff did perform services for the defendant for nearly two years, and that no right of action, by reason thereof, accrued to the plaintiff prior

to January 20, 1887; and also that in November, 1888, defendant paid to plaintiff on account, and not to buy his peace, or without consideration, the sum of $900.

the accounts, and a balance is then struck and agreed upon, and admitted to be due from one to the other, the statement is complete, though the debtor reserves the right to pay the balance at some future day. Tuggle v. Minor, 76 Cal. 96, 18 Pac. Rep. 131. Whether the defendant had set. tled with Jewett before the action was commenced does not appear, but, if not, the only defense which could be interposed on this ground would be that the action was prematurely brought. No such defense, however, was interposed, and upon the record presented the question cannot now be considered.

fault, but that no such allegation was made or proof offered. An "account stated," as defined by Bouvier, is "an agreed balance of accounts; an account which has been examined and accepted by the parties." And in Chitty on Contracts (11th Amer. Ed., vol. 2, p. 962) it is said: "It must appear that at the time of the accounting certain claims existed, of and concerning which an account was stated; that a balance was then struck and agreed upon; and that defendant expressly admitted that a certain sum was then due from him as a debt. Hence it follows that an account cannot be stated with reference to a debt payable on a contingency," but that it is not "essential that there should be cross or reciprocal demands between the parties, or that the defendant's acknowledgment that a certain sum was due from him to the plaintiff should relate to more than a single debt or transaction." Here it was proved that plaintiff had presented a much larger claim for his services than was allowed, and that there had been considerable correspondence between the parties in regard to it; "that on the 3d day of July, 1838, the defendant, then being in San Francisco, called at the office of the plaintiff, and a conversation occurred between them relative to a settlement of plaintiff's claim. After some negotiation, defendant offered to pay plaintiff the sum of five thousand dollars in full settlement, the money to be paid by defendant as soon as he should settle matters with a Mr. Jewett, who was the agent of defendant at Los Angeles. Plaintiff accepted this offer, and told defendant that he would settle his account with defendant for that sum; and it was then agreed that defendant should pay plaintiff, and plaintiff would accept from defendant, $5,000, in extinction of all claims of plaintiff upon defendant." The claim of plaintiff was not a debt payable on a contingency, but was clearly such a one as might be agreed upon and stated by the parties; and the facts proved by plaintiff, if true, clearly show that the transaction constituted a full and complete statement of the account. It is true that the money was to be paid when defendant should settle with Jewett, but that did not affect the statement. If two parties, having accounts between them, examine v.33P.no.1-5

But, conceding this to be so, it is further strenuously urged that the plaintiff's cause of action was barred by the statute of limitations pleaded, and that the find.

was contrary to, and not justified by, the evidence. This position is rested upon the theory that the statute began to run against plaintiff's claim when he completed his services on January 20, 1887, and that under section 360 of the Code of Civil Procedure its running was not suspended or affected by the oral statement of the account, and hence that, as more than two years had elapsed when the complaint was filed, the action was barred. It is admitted, however, by the learned counsel, that this theory is in direct conflict with the rulings upon the same question in Auzerais v. Naglee, 74 Cal. 60, 15 Pac. Rep. 371, and Kahn v. Edwards, 75 Cal. 192, 16 Pac. Rep. 779, but it is claimed that these cases were not well considered, and should be overruled. In the first of these cases it is said: "An open account, already barred by the statute of limitations, cannot be relieved from the bar of such statute by an oral statement of such account, for the reason that under our Code (Code Civil Proc. § 360) no acknowledgment or prom. ise is sufficient evidence of a new or continuing contract by which to take the case out of the operation of the statute, unless the same is contained in some writing signed by the party to be charged thereby. Where, however, the demand is not barred at the date of the account stated, although the statement is verbal, the statute begins to run upon the new cause of action thus brought into existence from the date of the settlement and new promise arising thereunder; and, if verbal, an action may, under subdivision 1 of section 339 of the Code of Civil Procedure, be brought within two years after such settlement." And in the second case named this language was quoted and approved. In answer to the claim that these cases should be overruled, so far as they treat upon the subject in hand, it is enough to say that they are supported by many authorities elsewhere, and, in our opinion, should be sustained. It follows that the judgment and order appealed from should be affirmed, and we so advise.

We concur: SEARLS, C.; VANCLIEF, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

(Supreme Court of California. May 8, 1893.) COUNTY OFFICERS COMPENSATION

-

INCREASE DURING TERM-CONSTITUTIONAL LAW.

1. The county government act of 1883, as amended in St. 1889, p. 232, fixed the salaries of district attorneys, making them full compensation for all services, including deputies. The county act of 1891 also fixed the salaries of said attorneys, but provided that the deputies should be paid by the counties as other officers. Held, that an attorney elected before the act last named took effect was not entitied to have his deputies paid by the county, as this would be an increase in salary during his term, within Const. art. 11, § 9.

2. That part of the act of 1891 segregating counties of the eighth class alone from all others, and conferring on the district attorney therein authority, which is not granted to that officer in other counties, to determine whether he will have deputies or not, is in violation of articles 4 and 11 of the constitution, with reference to local or special laws, and uniformity in county governments.

In bank. Appeal from superior court, Fresno county; M. K. Harris, Judge.

Petition by one Welsh for writ of mandate to compel Bramlet to draw his war rant as county auditor. Writ denied. Petitioner appeals. Affirmed.

H. H. Welsh, in pro. per. Sayle & Coldwell and E. D. Edwards, for respondent.

HARRISON, J. The appellant was appointed assistant district attorney of Fresno county on the 1st day of April, 1891, by virtue of the provisions of subdivision 21 of section 170 of the county government act, passed March 31, 1891. He entered upon the duties of his office, and on the 3d day of July, 1891, made a demand upon the respondent, as county auditor, that he draw a warrant on the county treasury in his favor for the sum of $200, as his salary during the month of June. The respondent refused to comply, and the appellant instituted this proceeding for a writ of mandate compelling him to draw the warrant. The superior court denied the writ, and the petitioner has appealed.

1. Under the county government act of 1883, the county of Fresno became a county of the twenty-sixth class, and remained in that class until the act was su perseded by the county government act of 1891. In 1889 (St. 1889, p. 232) the legislature revised the compensation of the officers of the several counties of the state, and by section 188 of the county government act, as then amended, the salary of the district attorney in counties of the twenty-sixth class, "for the services required of him by law or by vir tue of his office," was fixed at $3,600; and in section 211 of the same act (page 300) it was declared that the salaries provided in the act should be "in full compensation for all services of every kind and description rendered by the officers therein named, either as officers, or ex officio officers, their deputies and assistants; and all deputies employed shall be paid by their principals out of the salaries herein before provided." Under the classi

fication of counties made by the legislature in the county government act of 1891, according to the census of 1890, Fresno county became a county of the eighth class, and by section 170 of that act the compensation of the district attorney in counties of the eighth class was fixed at $3,600. The legislature, however, incorporated into this section of the act the following subdivisions: "21. The district attorney may appoint an assistant district attorney at a salary of $1,800 per annum, an assistant district attorney at a salary of $2,400 per annum, a deputy district attorney at a salary of $1,500 per annum." 23. All the provisions herein relating to counties of this class shall take effect from and after the date of the approval of this act, and the compensation of all assistants, deputies, and clerks shall be paid by the county in the same manner in which the salaries of county officers are now paid." Article 11, § 9, of the constitution, declares: "The compensation of any county, city, town, or municipal officer shall not be increased after his election or during his term of office." If the effect of the foregoing provisions of the act of 1891 was to increase the compensation of the district attorney of Fresno county beyond the amount at which it was fixed at the time his term of office began, they are in conflict with this section of the constitution, and do not form the basis of a charge against the county. In Dougherty v. Austin, 94 Cal. 601, 28 Pac. Rep. 834, 29 Pac. Rep. 1092, the county clerk of Marin county, at the time of his election, and when his term of office began, was entitled to receive a fixed sum for the services to be rendered by virtue of his office. After he had entered upon his term of office, he appointed Dougherty as one of his deputies, by virtue of a provision in the county government act authorizing the board of supervisors in certain classes of counties, one of which included Marin, to permit certain officers, whose compensation for all services to be rendered by them had been fixed at a gross sum, to appoint deputies. whose salaries should be a charge upon the county treasury. Upon an application for a writ of mandate to compel such payment by the county, it was held that that provision of the county government act was invalid. That case was very elabo. rately argued, and was determined upon deliberate consideration, and holds: (1) That under the provisions of section 5, art. 11, of the constitution, the legislature is required to fix the compensation of the county officers, and that it is not competent for that body to delegate the exercise of this authority to the discretion of any other body. (2) That a statute which authorizes the increase of salaries in certain counties, selected arbitrarily, and without reference to any criterion as the basis of such selection, is violative of the constitution. in not being uniform in its operation. (3) That when the legislature has fixed the compensation of an officer at a gross sum, it cannot increase that compensation during his term of office, directly, by legislative act, or indirectly, by providing that the salaries of

his deputies, which by the law as it existed when bis term of office began were to be paid by him out of this gross sum, shall be made a county charge, and paid out of the county treasury. In holding that the foregoing provision of the county government act was unconstitutional, it was said: "The salary of this officer was fixed by the legislature with direct reference to the fact that out of it he was to pay his own deputies, and the purpose of this amended section is to authorize the board of supervisors of that County to suspend the operation of this law in so far as he is thereby required to pay such deputies, and to place the burden upon the county. The power thus to change a law of the state is necessarily legislative in character, and is vested exclusively in the legislature, and cannot be delegated by it to the board of supervisors of the county." Page 606, 94 Cal., and page 1093, 29 Pac. Rep. And in the concurring opinion of the chief justice, it was said that the legislature "could not, either by direct enactment, or by authorizing the boards of supervisors to so order, impose upon a county treasury the payment of the salary of any deputy of a county officer elected while the act of 1883 remained in force, and unamended as to the provisions under discussion.' Page 613, 94 Cal., and page 1095, 29 Pac. Rep. In the opinion of Mr. Justice Garoutte, which was rendered upon the first hearing in the case, and which was also adopted by the court upon the subsequent hearing, it was said with reference to article 11, § 5, of the constitution: "To construe this provision of the constitution so that a county clerk's salary could not be increased during his term of office, but that an act of the legislature would be valid which provided that all of his deputies, men whom he was bound to employ and bound to pay, in the absence of such an act, should be paid by the county, independent of and in addition to the clerk's salary, would be to allow that to be done indirectly which could not be done directly, and would be establishing a medium for the practice of the very abuses which the constitutional provision was inserted to destroy." At the general election in 1890, W. D. Tupper was elected district attorney of Fresno county for the term of two years, and his term of office began on the 1st day of January 1891. At that date the compensation of the district attorney of Fresno county, as provided by the law then in force, was the sum of $3.600, and this sum was by the same law declared to be in full compensation for all services of every kind and description to be rendered by him and his deputies and assistants, and by virtue of section 9, art. 11, of the constitution, this salary was to remain as his entire compensation during his term of office, or until the 1st day of January, 1893. The provision in subdivision 21, § 170, of the county government act of 1891, authorizing him to appoint assistant district attorneys and a deputy district attorney, conferred no special authority in this respect, for, by section 61 of the act under which he was elected, he was au

"

thorized to "appoint as many deputies as may be necessary for the prompt and faithful discharge of the duties of his office. Section 211 of the act which was in force at the time when his term of office began required him, however, to pay the salaries or other compensation of these deputies and assistants out of the salary that had been provided for him in the act, and the foregoing provision in subdivision 23, § 170, of the county government act of 1891, that this compensation should be paid by the county, was to that extent an increase of his salary. There is no difference in principle between a statute authorizing the board of supervisors to permit a county officer to appoint a deputy, whose salary shall be a charge upon the county treasury, and one directly authorizing such officer himself to appoint a deputy, whose salary shall be paid by the county. The result in either case is to increase the compensation of the officer beyond the amount at which it was fixed at the time of his election and at the commencement of his term of office. If there be any difference in principle between the two statutes, the stronger argument is in favor of the one which would subject such appointment to the arbitrament of the legislative body of the county, rather than to leave it to the will of the officer himself to determine whether his salary should be so increased.

2. Section 4, art. 11, of the constitution, provides that "the legislature shall establish a system of county governments which shall be uniform throughout the state." This means that the "system" or plan for the government of the several counties in the state shall be uniform, so that its several parts shall be applicable to each county. The legislature is forbidden by the constitution from passing any local or special law "regulating county or township business," (article 4, § 25, par. 9,) or "prescribing the powers and duties of officers in counties, " (Id. par. 28.) Section 5, art. 11, directs that "the legislature by general and uniform laws shall provide for the election or appointment in the several counties of * * such county, township, and municipal officers as public convenience may require, and shall prescribe their duties, and fix their terms of office." This provision of the constitution is mandatory, and must be construed not only as giving to the legislature the exclusive authority to provide for the officers in the several counties, fix their terms of office, and prescribe their duties, but also as declaring that such provision must be made by general and uniform laws," and that any law which the legislature may enact upon these subjects must be uniformly applicable to all the counties in the state. The county government act of 1891 purports to be applicable to all the counties of the state. Its title is "an act to establish a uniform system of county and township governments." The first 161 sections of the act are devoted to provisions for the varions officers of the counties, authorizing their election, fixing their terms of office, and prescribing their powers and duties. Section 162 makes a classification of all the counties in the state, ac