County of Sacramento v. Pfund

HENSHAW, J.

This is a proceeding in mandate to compel the respondent, the county clerk of Sacramento County, to pay into the county treasury certain fees asserted to have been collected by him as such county clerk for services performed in the issuance of hunting licenses under the act to regulate and license the hunting of wild birds and animals. (Stats. 1909, p. 663.) Section 2 of that act provides as follows : “Licenses granting the privilege to hunt, pursue or kill wild birds or animals shall be issued and delivered upon application, by the county clerk of any of the counties of this state, or by the state board of fish commissioners.” The licenses shall be prepared by the fish and game commission and

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furnished to the county clerk, and for the licenses furnished to and disposed of by the county clerk, “the county clerk shall be responsible and shall account for the same to the controller of the state every three months, beginning with July 1st of each year. For each license sold, registered, and accounted for by any person excepting a fish commissioner, he shall be allowed as compensation out of the game preservation fund, ten per cent of the amount accounted for.” The facts, over which there is no serious controversy, are that respondent received for the issuance of these licenses the sum of $4,721. The whole of this sum he paid into the state treasury at different times, in accordance with the law, and after such payments he received from the fish and game commission the ten per centum contemplated by the statute, which moneys, aggregating $472.10, he insists upon his right to retain as his personal property. The legal question, therefore, is, whether under the law the county clerk is so entitled to retain it, and, subordinate to that inquiry—one not necessary here to determine— whether, if the county clerk is not entitled to retain it, the money belongs in the treasury of the county or of the state.

Preliminarily, it may be said that no question is here involved of an increase of salary during the term of office of an incumbent, for the term which respondent is now serving commenced nearly two years after the act of 1909 was passed.

A reading of the License Act of 1909 establishes certain facts beyond peradventure: 1. That the state of California has imposed an additional duty upon the county clerks, for the act not only authorizes them to issue the licenses, but makes it their duty so to do upon application; 2. That this duty is one to be performed, not for and on behalf of the county, but for and on behalf of the state, since it is a state license which the county clerks are authorized and directed to issue, and since by section 6 of the act all moneys collected from these licenses shall be paid into the state treasury; 3. That the authority to issue licenses is limited absolutely to the state board of fish commissioners and their deputies, and county clerks and their deputies; 4. That the state legislature set forth a succinct and clearly devised plan whereby for the issuance 'of such licenses “any person” other than a fish commissioner who should so issue them, was allowed “as compensation” ten per cent,of the amount of the license; 5. That since the authority to issue