County of Sacramento v. Colgan

Henshaw, J. This is an action in mandate against the controller of the state to compel him, in the next settlement to be made by him with the treasurer of the county of Sacramento, to allow the treasurer to retain, out of any money's then in his hands and belonging to the state, the sum of thirty-two thousand six hundred and sixty dollars and ten cents. This amount plaintiff claims to be due it as commissions for collecting state taxes for the years 1876 to 1892, inclusive.

The claim was presented under a recent act of the legislature entitled “An act authorizing the allowance, settlement and payment of claims of counties against the state,” approved March 9, 1893. (Stats. 1893, p. 109.)

The trial court found against the claim of plaintiff, and from its judgment this appeal is taken.

In 1870 there was in force an act entitled “An act to regulate fees of offices and salaries of certain officers, and to repeal certain other acts in relation thereto.” (Stats. 1869-70, p. 148.) Section 1 of that act provided: “Fees and salaries are allowed to the officers hereinafter named .... and such officers may lawfully charge, demand, and receive the same to their own use and benefit.” Section 13 of the act provided that the tax collector of the several counties shall receive for the collection of state and county taxes, except taxes for school purposes, six per centum on the first ten thousand dollars collected, [248]four per centum on all over ten thousand dollars and under twenty thousand dollars, and two per centum on all over twenty thousand dollars.

In 1874 the legislature pássed another act entitled “An act to regulate the fees of offices and to fix the compensation of the county officers in the county of Sacramento.” (Stats. 1873-74, p. 204.)

Section 9 of this act provided that “the tax collector of said county is allowed one per cent on all state and county taxes collected by him .... which said percentage shall be retained by him out of the moneys so collected as aforesaid.” Section 18 provided: “An act entitled ‘An act to regulate fees of office and salaries of certain officers, and to repeal certain other acts in relation thereto/ approved March 5,1870, .... so far as it relates to the county of Sacramento, and all acts and parts of acts in conflict with the provisions of this act, so far as they apply to the county of Sacramento, are hereby repealed.”