WILBUR, J., Dissenting.
I dissent. The petition and argument upon rehearing have not changed my opinion in regard to the matter. In view of the fact that many of the
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code sections cited in the previous opinions had not been discussed by the parties in their briefs, it was proper to grant a rehearing for the purpose of considering such arguments as might be presented in regard to their meaning or effect. Nothing has been presented, however, which changes my opinion in the matter, although it is true that there was an inadvertent statement in the opinion concerning the effect of section 3680 of the Political Code, it being the duty of the tax collector and not the assessor to mark upon the tax bills the words “Sold to the State.” Omitting the words “and tax bills” thus inadvertently used, and also omitting the statement of facts which is contained in the main opinion, that opinion is as follows:
“The work so contracted for was fully completed by petitioners, and the result of the action initiated by the supervisors upon the report of petitioners was that between March 5, 1918, and August 29, 1918, there was paid into the county treasury as Placer County’s proportion on account of redemptions and sales of said parcels of land the sum of $4462.96. Under the terms of the contract petitioners are entitled to a sum equal to one-half of this amount, and this is the sum specified in their warrant which the treasurer refuses to pay.
“If the action of the board of supervisors was unwarranted in law, in whole or in part, the petitioners are not entitled to the writ. The respondent claims that it was the duty of county officials to perform a very substantial part of the labor that the petitioners agreed to perform, and that the contract was therefore void, citing as authority for that conclusion,
County of Humboldt
v.
Stern,
136 Cal. 63, [68 Pac. 324], wherein it was held that as it was the duly of the county clerk to ‘ perform all other duties required by law, or any rule or order of the board, ’ it was his duty to furnish the board such data from the records of his office as they might require. In this case the contract required the petitioners to examine the records of the tax collector and report the result to the supervisors for the purpose of securing the authority of the state controller for a sale as provided by section 3897 of the Political Code. Petitioners were also to check the records in the county auditor’s office.’ If it was the duty of the tax collector or of the auditor or other county officer to furnish the required data, the supervisors
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could not under their general powers employ other persons to perform' such duties of such county officers at the expense of the county. The provisions of the law fixing the powers and duties of the various officers of the state and county in respect to the assessment and collection of taxes, before and after delinquency, are found in numerous provisions of the Political Code, relating to taxation and to county government. The powers and duties of the board of supervisors are defined in section 4041 of the Political Code, subdivision 1 of which provides that they shall have power ‘to supervise the official conduct of all county officers ... to see that they faithfully perform their duties, direct prosecutions for delinquencies and, when necessary, require them to renew their official bonds, make reports and present their books and accounts for inspection. ’ This power would give the supervisors access to all the information needed, or by petitioners agreed to be furnished, from such records. If it be doubted whether the power to require the officers ‘to make reports’ is sufficiently broad to require them to search the records to determine the amount of unpaid taxes, due upon property sold to the state, there are other sections of the code requiring reports from county officers concerning the financial condition of the county which may properly be considered in that connection. . . . Section 3737 of the Political Code requires an annual report of the auditor in regard to the financial condition of the county, including a statement of the indebtedness of the county, the property of the county, the amount in the treasury subject to the payment of such indebtedness, the rate of taxation, the assessed value of the property in detail for the year, and ‘Fifth, such other information as the Board of Supervisors or the controller of the state may require.’ There is little doubt that the supervisors would be entitled under this section to require a list of the deeds made to the state as shown by the auditor’s books, if, by reason of a plan to enforce payment thereof, such information was necessary to determine the financial status of the county and its fiscal policy, particularly as the auditor is required each year to compile for the assessor ‘a complete and true statement of all property which has been redeemed under or by virtue of any sale made to the state for delinquent taxes, together with a complete and true statement of
all property sold to the state and remaining
unredeemed(See, 3678,
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Pol. Code, and Arndt. 1917, [Stats. 1917, p. 430], See, also, see. 3739, Pol. Code.) This list would include all property-sold to the state, whether deeded or not, as it is subject to redemption both before and after such deed. (Pol. Code, secs. 3780, 3817.) Such information is necessary for the^ assessor, for until the deed he must continue to assess the property (Pol. Code, see. 3813), and mark upon the assessment and tax bills therefor ‘sold to the state,’ with date of sale (Pol. Code, sec. 3680), and after deed should omit such assessment (see Pol. Code, secs. 3787, 3607,3813,3773) until the property again passes into private ownership by reason of sale or redemption, which fact must be reported by the tax collector or auditor, as the case may be, to the assessor annually (Pol. Code, see. 3898, amended Stats. 1907, p. 699; Stats. 1913, p. 560, subd. 3; Stats. 1917, p. 715, siibd. 3; sec. 3739; Stats. 1897, p. 431). By section 4099 of the Political Code the treasurer and auditor are required quarterly to make a joint report to the board of supervisors, and at such other time as the board may require, showing the sources of county revenue, distribution of the revenue into funds, the total amount of warrants drawn and paid, and to ‘generally, make a full and specific showing of the financial condition of the county. ’ It must be obvious that where uncollected taxes form a sufficiently important item of county revenue to justify an unusual effort to collect such taxes, that such financial statement or report should include a detailed statement of such taxes, if so required by the board of supervisors. The state controller is ordinarily charged with the duty to direct the sale of lands deeded to the state (sec. 3897, Pol. Code), and upon such authorization it is the duty of the tax collector to give the necessary notice of sale, and for that purpose to prepare the necessary lists of lands to be sold. The supervisors, however, may by resolution direct the tax collector to apply to the state controller for authority to sell, and in that event to make the advertising expenses a county charge. They may also, in the event that they so find the fact, certify their opinion that certain properties so deeded to the state are not of sufficient value to sell for the amount of the tax. It is upon these provisions of the law, added by amendment after the decision of this court in
House
v.
Los Angeles,
104 Cal. 73, [37 Pac. 796], that petitioners rely to distinguish their contract from the con
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tract there held invalid. The power of the supervisors to enter into the contract in this case is asserted on the ground they were entitled to have before them the information which petitioners agreed to furnish, in order that they might determine therefrom whether or not to direct the tax collector to apply for authority to sell and whether or not to certify that some of the lands deeded to the state were worth so much less than the taxes thereon as to require an authorization for a sale for less than such tax, penalties, and costs. It is not claimed that the supervisors found any piece of property so deeded to be of such small value as to require the latter resolution, nor is it claimed that there were any circumstances which indicated the necessity of an investigation to ascertain that fact. We may assume, however, for the purposes of this decision that the authority of the hoard of supervisors to initiate proceedings for the sale of property deeded to the state was sufficient to authorize them to secure such data as was necessary to determine the desirability of initiating such proceedings, and the question of whether or not they should invoke an authorization from the controller to sell for less than the total amount of taxes, penalties, arid costs. It is clear from the foregoing provisions of the Political Code with reference to the duty of county officers to furnish reports and information required 'by the board of supervisors in relation to county finances, etc., that it was the duty of such officers when required by the board of supervisors to furnish all data necessary to show the amount of unpaid taxes, penalties, etc., upon land deeded to the state, and the amount of land so deeded, together with such other information ascertainable from their respective books and records as the supervisors deem necessary for their enlightenment in exercising their authority in the premises. In view of this duty on the part of county officers, the contract of the board of supervisors with the petitioners, in so far as it agreed to compensate them for furnishing information which it was the duty of the county officers to furnish was unauthorized and void. With reference to such portions of the work performed by petitioners under their contract as were not by law required to be done by the various county officers, it is sufficient for the purposes of this case to say that where a substantial part of the duties agreed by petitioners to be performed were contracted for in violation of the law,
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the contract being entire, the whole contract is void. (See. 1608, Civ. Code;
Humboldt County
v.
Stern,
136 Cal. 63, [68 Pac. 324];
Teachout
v.
Bogy,
175 Cal. 481, 486, [166 Pac. 319].) ”