Corbett v. Widber

HENSHAW, J. This appeal is from a judgment awarding to the plaintiffs a writ of mandate against the treasurer of the city and county of San Francisco.

The assessor of the city and county of San Francisco is required to collect taxes upon personal property unsecured by real estate some months in advance of the fixing of the rate by the supervisors. He is, therefore, directed by law to collect at the rate established for the preceding year. These moneys he turns over to the treasurer. In the event that the taxes so collected for the current year shall exceed the amount finally determined to he due, the excess “must be repaid by the county treasurer to the person from whom the collection is made, or to [155]his assignee, on demand therefor.” (Pol. Code, secs. 3640, 3714, 3820-30.)

It is admitted that there was an excess of forty dollars and five cents in the treasury paid by plaintiffs’ assignors in accordance with these laws. Plaintiffs made oral demand upon the treasurer for the payment back to them of the money, and upon his refusal applied for and obtained a writ of mandate.

In support of this appeal reliance is had upon the provisions of the consolidation act, section 84 of which declares that “every demand upon the treasury .... must, before it can be paid, be presented to the auditor of the city and county, to be-allowed,” et cetera. Section 82 of the same act declares: “No-payment can be made from the treasury, or out of the public-funds of said city and county unless the same be specifically authorized by this act, nor unless the demand which is paid be duly audited, as in this act provided.” Notwithstanding these-provisions, we think the demand made by plaintiffs in this ease-was legally sufficient, and that to this character of demand the-sections of the consolidation act above cited do not apply. The-excess moneys so received by the treasurer are no part of the-moneys of the city and county, and, if the aggregate of them be denominated a fund, it is in no sense a public fund of the-city and county. It is a trust fund in the custody of the city, and under the immediate charge of its treasurer. The treasurer is but a bailee, holding the moneys subject to the demands of the rightful owners. The revenue laws expressly declare that these moneys shall not be apportioned to the state, but shall be held in the treasury and repaid to the rightful owner upon his demand. (Pol. Code, sec. 3824.) Moneys so held constitute no part of the public funds. (Pacific Mut. Life Ins. Co. v. San Diego Co., 112 Cal. 314; Elberg v. San Luis Obispo Co., 112 Cal. 316.) A demand upon the treasury for the repayment of moneys so-held is not “a demand upon the treasury,” or a demand upon any “public fund” in the treasury, within the meaning of the consolidation act. Section 95 of the consolidation act declares that “demands on the treasury may be made for the following objects, and none others.” Under fifteen subdivisions of the section are enumerated the kinds and characters of such demands, and the objects for which the public moneys of the city and county may be expended. The section will be read in vain