Smith v. Dunn

Thornton, J. — This action was brought by plaintiff as treasurer of Yolo County to procure a writ of mandate to compel the defendant, as state controller, to make a settlement with the petitioner, allowing certain commissions claimed to be due to the county above mentioned, and certain mileage due respondent. This claim is made under the act of May 17, 1861 (see Stats. 1861, p. 453, secs. 107, 108), the act of March 5, 1870 (Stats. 1869-70, p. 164, sec. 13), and section 3428 of the Political Code.

It is said that the law making these allowances has been repealed by the act approved March 14, 1883, entitled “An act to establish a uniform system of county and township governments.” We are referred to sections 164 and 165 of this act.

By section 164 it is enacted that “ the salaries and fees provided for in this act shall be in full compensation for all services of every kind and description rendered by the officers therein named, their deputies and assistants.”

The same section excepts from the foregoing certain commissions allowed the assessor, estimated by a percentage of the amount of the taxes on personal property collected by him under section 3820, Political Code, and on the poll-taxes also collected by him. In many of the counties the constables are to be compensated by fees allowed by law at the date of the passage of the act or afterwards. These fees are in part commissions estimated by a percentage.

It is provided by section 165 of this act as follows:—

“All salaried officers of the several counties of this state [56]shall charge and collect for the use of their respective counties, and pay into the county treasury on the first Monday in each month, the fees now or hereafter allowed by law in all cases except the percentage heretofore allowed such officers, and excepting also such fees as are a charge against the county.”

Now, it is argued that inasmuch as “ percentages ” are not required in so many words to be paid into the county treasury, but “ fees ” are, that percentages and fees refer to different things, and that the officers have no right to retain and pay such percentages into the treasury,

We cannot concur in this view. -The word “ fees,” in its popular and common acceptation, includes the commissions, estimated by a percentage allowed by law on sums of money received or collected. We think the word “ fees ” is used with such signification in the section cited from the County Government Act.