Solano County v. Neville

By the Court, Rhodes, J. The plaintiff sued the defendant to recover the one half of the fees allowed by law, as the percentage for the collection of the property tax in Solano County, which was received by him as Tax Collector, between the 17th of August and the [46916]th of November, 1863. The defendant demurred to the complaint and his demurrer was sustained.

The first ground of demurrer now urged by the defendant is, that the plaintiff has not legal capacity to sue. This is answered by the Act of May 11, 1854 (Wood’s Dig. 349), which provides that “ suits brought for or against a county, shall be by or in the name of such county.” The General Fund belongs to the county, and neither the Treasurer nor the Board of Commissioners can sue to recover moneys that are required by law to be paid into that fund,, for neither they nor the creditors of the county have a direct interest in the fund.

The ground mainly relied on is that the Act of 1863 “ is objectionable as taking the property of the Tax Collector and giving it to another.” It is provided by section seven of the Act to regulate the fees of certain officers in Solano County (Stats. 1863, p. 193), that “ the Tax Collector shall receive the fees and compensation now allowed by law; but fifty per cent of the compensation allowed for the collection of property tax shall be paid by him into the County Treasury for the benefit of the General Fund.”

It is not surprising that the appellant finds it difficult to construct an argument in answer to the respondent’s proposition, for when it is said that the whole matter of fees and compensation for the collection of taxes is subject to the control of the Legislature, and that by the section of the Act cited, the Tax Collector is entitled to retain for his services only one half of the compensation allowed by the general Revenue Act, and is required to pay into the General Fund of the county the remaining half, the argument is exhausted.

Judgment reversed and cause remanded, with directions to the Court below to overrule the demurrer, with leave to the defendant to answer the complaint according to the rules of said Court.