City & County of Sacramento v. Bird

Cope, J. delivered the opinion of the Court Baldwin, J. concurring.

This case comes up on an agreed statement. The suit is brought to recover of the defendant a sum. of money in his hands, claimed to belong to the plaintiff, and which the defendant received from the State Treasury, as a compensation allowed by the general law to the Treasurers of the counties, for paying money in their hands into the State Treasury. It is claimed by the plaintiff that this sum, under the twenty-eighth section of the Act to incorporate the city and county of Sacramento, (Acts of 1858, 277) belongs to the corporation.

We think the plaintiff entitled to recover. The twenty-fourth section of the Act of 1858, provides that the Treasurer of the city and county shall receive the sum of $3,000 per annum, as a compensation for his services, and the twenty-eighth section of the same act provides that “ every officer, or other person, having the control, collection, or custody of any money collected for taxes, licenses, water rents, fees of office, or for any other account' not otherwise herein provided, shall pay the same into the Treasury,” etc. This statute evidently intended that the Treasurer should only receive for his official services the compensation of $3,000 therein provided. The fact that the per centage, which he claims the right to retain, came from the State for money paid by him into the State Treasury, makes no difference. He received this money and paid it in, as an officer of the city and county, and this constituted a part of the services for which his salary was paid.

Judgment affirmed.

Field, C. J. I dissent. I am of the opinion that the County Treasurer is entitled to retain the per centage.

On petition for rehearing, Cope, J. delivered the opinion of the Court Court-Baldwin, J. concurring.

The petition for a rehearing must be denied. Prior to the Consolidation Act, the Treasurer received three per cent, upon all moneys which came into his hands, as a compensation for his official services. That act provides that he shall receive for such services the sum of $3,000 per annum. It is impossible to avoid the conclusion that this [296]