County of Butte v. Merrill

McFARLAND, J.—

The defendant Merrill was county tax-collector of Butte County from January, 1895, to January, 1899; and this is an action against him and his bondsmen to recover the sum of $3,245.05, collected by him as such tax-collector during his said term of office and converted to his own use. Judgment went in the court below in favor of plaintiff for the said amount of money, and defendants appeal from the judgment.

The money sued for is part of the whole amount of license-taxes collected by appellant Merrill, and consists of money which he contends he had the right to retain as commissions allowed him by law for the collection of license-taxes. Whether or not he has that right is the question here involved.

Appellant contends that he is entitled to retain the money here in question by virtue of an ordinance of the board of supervisors of Butte County, passed February 10, 1893, and another ordinance passed March 3, 1894,—both passed before Merrill was elected to or commenced his said term of office,— which ordinances provided that for the collection of taxes; for business licenses, other than for the sale of liquor, the collector should receive as compensation ten per cent of the amount collected, and should receive five per cent for the collection of taxes for liquor licenses. If said provisions in said ordinances were valid, then respondent was not entitled to recover in this action. But the lower court correctly held that when Merrill took the office of tax-collector the law made it his duty to collect all licenses

(Ventura County

v.

Clay,

112 Cal. 63.) It further correctly held that the board of supervisors had not the power either to create the office of license-tax collector or to fix his compensation.

(County of El Dorado

v.

Meiss,

100 Cal. 273.) It was decided in

Dougherty

v.

Austin,

94 Cal. 601, that a board of supervisors has nothing to do with fixing the compensation of a county officer. Appellants also rely upon the act of the legislature, approved March 27, 1895, (Stats. 1895, p. 267,) which in

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