[11] ID.-DEFINITION OF "SYSTEM."-The word "system," as employed in the constitution, means an organized plan or scheme in keeping with which the constituent parts thereof are rendered similar and are connected and combined into one complete, harmonious whole, and it necessarily imports both a unity of purpose and entirety of operation.

[12] ID.

COUNTY ENGINEER ACT-UN CONSTITUTIONALITY OF.-Inasmuch as the County Engineer Act provides for a county office, involving the exercise of political functions, it violates the constitutional requirement that the system of county governments prescribed by the legislature shall be uniform throughout the state, by reason of the fact that it is not mandatory in its operations, but it is optional with each county whether or not the office provided for by the act shall be established therein.

APPEAL from a judgment of the Superior Court of Sonoma County. Emmett Seawell, Judge. Reversed.

The facts are stated in the opinion of the court.

W. F. Cowan and R. M. F. Soto for Appellant.

G. W. Hoyle for Respondent.

LENNON, J.-In this proceeding the plaintiff sought, and was denied, mandamus to compel the defendants, respectively the auditor and the treasurer of the county of Sonoma, to audit and pay the claim of plaintiff presented against said county in the sum of $39.24 for labor alleged to have been performed by the plaintiff upon certain of said county's highways.

The claim in controversy is founded primarily upon the admitted fact that plaintiff performed labor upon said highways under and by virtue of the direction and authority of one of the supervisors of said county elected from and representing the supervisorial district in which the labor was performed and who, by virtue of his office, was road commissioner for said district and, as such commissioner, was given supervision of the highways in his district. (Pol. Code, secs. 2641, 2645.) The labor which is the basis of the claim in controversy was performed on July 26, 1919, subsequent to the appointment by the board of supervisors of a county engineer, made pursuant to the provisions of an act entitled "An act providing for a county engineer for

..

each county in the state, . . . his appointment, manner of removal, qualifications, compensation and duties; transferring to such engineer certain powers, functions and duties heretofore vested in and performed by the county surveyor and members of the board of supervisors; . . . to provide for abolishing the office of county surveyor and for the fixing and levying of taxes for road purposes." (Stats. 1919, p. 1290.) Section 13 of this act provides that it shall be known and designated as "the County Engineer Act," and it will be hereinafter referred to by that title. (Stats. 1919, pp. 1290, 1295.) In keeping with the provisions of this act, the board of supervisors, when appointing the county engineer for a term of four years, fixed his salary at the sum of $350 per month, and the number and compensation of his assistants. Said labor was performed by plaintiff without, and never has had, the authority, inspection, and approval of said county engineer as required by the provisions of subdivision b of section 5 of said act. The claim in question was, however, approved and allowed by the board of supervisors as a legal charge against the county, apparently upon the theory that, inasmuch as an ordinance, passed subsequent to the ordinance appointing the county engineer, with apparent intent to do so, excluded the supervisorial district in which the labor involved was performed from the scope and operation of the ordinance appointing the engineer, it thereby, in effect, left the supervisor of that district as the ex-officio road commissioner thereof in control of the work to be done on the highway therein to the exclusion of the authority and direction of the county engineer. The writ seeking an order directing the auditing and payment of the claim thus allowed was denied by the court below upon the theory that the County Engineer Act, having been adopted by the board of supervisors of Sonoma County, applied throughout that county; that the board of supervisors had no authority to except one district of that county from the operation of the act, and that plaintiff's claim was, therefore, void on its face because the work performed by plaintiff was not performed under the provisions of the County Engineer Act. The proceeding in mandamus is now here upon appeal of the plaintiff.

We shall concern ourselves only with the constitutionality of the act, for if it be held, as we think it must, to be un

constitutional, then it does not invalidate the plaintiff's claim and there is no need to discuss and decide the several remaining questions involved in the appeal.

[1] At the outset we are satisfied that the act in question contemplates the creation of a county office and does, in fact, provide for something more than a mere employment by the board of supervisors of a person to be known as the county engineer. And we are convinced that this is so despite the verbiage of the act, industriously employed, which, among other things, declares that the county engineer appointed by the board of supervisors "shall be deemed an employee and not a county officer. . . subject to the control and supervision of the board of supervisors.' [2] We are not unmindful of the cardinal rules of statutory construction which require an interpretation of a statute which will give effect to the legislative intent which, if consistent with the real object and purpose of the statute, must be adopted, and, doubtless, the express legislative declaration found in section 1 of the act purporting to designate the official character of the county engineer and specifying the category in which, when appointed, he and his duties must be considered and treated, tends in some degree to show the legislative intent to provide that the county engineer was to be a mere employee of the board of supervisors and not a county officer who was to be part and parcel of that uniform system of county government contemplated and commanded by the constitution. (Const., art. XI, sec. 4.) While ordinarily it is the rule that, when the law-making power distinctly states its design in the enactment of a particular statute, no room is left for construction, nevertheless, as the district court of appeal well said during its discussion of this phase of the case, "The label placed by the legislature upon its work cannot be permitted to give it a meaning not fairly contemplated within its terms." [3] In other words, a legislative declaration, whether contained in the title or in the body of a statute, that the statute was intended to promote a certain purpose is not conclusive on the courts, and they may and must inquire into the real, as distinguished from the ostensible, purpose of the statute, and determine the fact whether, after all has been said and done by the legislature, the statute, in its scope and effect, departs from the declared legislative design and contravenes

the fundamental and supreme law of the state. (Matter of Jacobs, 98 N. Y. 98, 110, [50 Am. Rep. 636]; State v. Kedmon, 134 Wis. 89, 107, [126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L. R. A. (N. S.) 229, 114 N. W. 137]; Mugler v. Kansas, 123 U. S. 623, [31 L. Ed. 205, 8 Sup. Ct. Rep. 273, see, also, Rose's U. S. Notes].) This being so, it cannot be rightfully held that, standing alone, the legislative declaration, in the instant case, compels the conclusion without more ado that the act in question did no more than provide for the mere employment of a county engineer and did not, in truth and in fact, attempt to create a county officer to be known as the county engineer. A proper construction of the act requires that due regard be given to the real object of the act. (People v. Dana, 22 Cal. 11; Genilla v. Hanley, 6 Cal. App. 614, [92 Pac. 752].) This may, we think, be readily ascertained, despite the legislative declaration to the contrary, by a consideration of the requirements of the act as gathered from the context of the act in its entirety.

Looking, then, to the context of the act in its entirety for the purpose of ascertaining its real, as distinguished from its ostensible, purpose, we are first brought to a consideration of the question of what distinguishes a public office from a mere employment. The words "public office" are used in so many senses that it is hardly possible to undertake a precise definition of the meaning and purpose of the phrase which will adequately and effectively cover every situation. It is far less difficult to conceive and comprehend the requirements which characterize a public office than it is to formulate a definition thereof which will have universal application and be entirely free from fault. [4] Its definition and application depend not upon what the particular office in question may be called, nor upon what a statute may call it, but upon the power granted and wielded, the duties and functions performed and other circumstances which manifest the true character of the position and make and mark it a public office, irrespective of its formal designation. (Knox v. Los Angeles County, 58 Cal. 59; Mechem on Public Offices, sec. 4; Hartigan v. Board, 49 W. Va. 14, [38 S. E. 698].) [5] A public office is ordinarily and generally defined to be the right, authority, and duty, created and conferred by law, the tenure of which is not tran

sient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public. (State v. Jennings, 57 Ohio St. 415, [63 Am. St. Rep. 723, 49 N. E. 404].) [6] A public officer is a public agent and as such acts only on behalf of his principal, the public, whose sanction is generally considered as necessary to give the act performed by the officer the authority and power of a public act or law. The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is an exercise of a part of the governmental functions of the particular political unit for which he, as agent, is acting. There are other incidents which ordinarily distinguish a public officer, such, for instance, as a fixed tenure of position, the exaction of a public oath of office and, perhaps, an official bond, the liability to be called to account as a public offender for misfeasance or nonfeasance in office and the payment of his salary from the general county treasury. (United States v. Hartwell, 6 Wall. 385, [18 L. Ed. 830, see, also, Rose's U. S. Notes]; United States v. Germaine, 99 U. S. 508, 511, [25 L. Ed. 482]; People v. Langdon, 40 Mich. 673; State v. Jennings, supra; Knox v. Los Angeles County, supra.) [7] As a matter of course, in keeping with these definitions, a county officer is a public officer and may be specifically defined to be one who fills a position usually provided for in the organization of counties and county governments and is selected by the political subdivision of the state called the "county" to represent that governmental unit, continuously and as part of the regular and permanent administration of public power, in carrying out certain acts with the performance of which it is charged in behalf of the public. (Sheboygan Co. v. Parker, 70 U. S. 93, [18 L. Ed. 33]; State v. Samuelson, 131 Wis. 499, [111 N. W. 712]; State v. Higginbotham, 84 Ark. 537, [106 S. W. 484].)

Measuring the provisions of the act hereinabove referred to by the authorities just cited, it seems evident, beyond argument, that the so-called "employee" provided for in the statute in question is, in fact, a public and a county officer. The act specifies that the tenure of the position of county engineer shall be a term of four years from the date of his