In re Dodge

The controversy in this case was submitted to the court below without action, under sections 1138, 1139, and 1140 of the Code of Civil Procedure. From the agreed statement of the case, it appears that between the first Mondays in March and July, 1900, said Dodge, as assessor of the city and county of San Francisco, collected and paid into the treasury of said city and county, on account of poll-taxes, the total sum of $93,872, without any deductions on account of percentage for the collection of the same, but that said Dodge, as assessor, claims the sum of $14,080.80, being fifteen per cent of the entire amount of poll-tax so collected, for and on account of fees and percentage; that he has demanded of the treasurer of said city and county that he pay over the said sum, but that the said treasurer refused, and still refuses, to do so. The agreed statement further shows: “That said sum of $93,872 so collected by said Dodge, as assessor as aforesaid, and paid into the treasury of the city and county of San Francisco, was so collected by him and his deputies, clerks, and assistants without any cost or expense to said Dodge or his said deputies, clerks, or assistants whatsoever; that said Dodge, as assessor of the city and county of San Francisco, receives the sum of $4,000 per annum as and for salary and compensation for services rendered by him in his official capacity, which said sum is payable monthly out of the general fund of the treasury of the city and county of San Francisco, and each and all of his deputies, clerks, and assistants receive, and received during all the times mentioned, certain fixed salaries and compensations, payable and paid out of the said general fund.”

Upon this agreed statement, the court below rendered judgment in favor of the assessor, from which judgment the city appeals. The sole question in controversy is whether the assessor of the city and county of San Francisco is entitled to

In the earlier history of the state it seems to have been the policy of the law to compensate county and city officials mostly or entirely by the fees collected for the work performed by such officials. In consequence of abuses growing out of this fee system, a change in the mode of compensating public officers is indicated in the constitution adopted in 1878-1879. The compensation of public officials, _ city and county, at present is mostly by way of a fixed salary, in lieu of fees. In some cases, however, county officials are still allowed to retain certain fees. It is enjoined upon the legislature by the constitution to regulate the compensation of officers in proportion to duties, and for this purpose the counties are to be classified by population, and “it shall provide for the strict accountability of county and township officers for all fees that may be ’collected by them, and for all public and municipal moneys which may be paid to them, or officially come into their possession.” (Art. XI, see. 5.) By the County Government Act of 1897, the city and county of San Francisco falls within the first class. (Stats. 1897, sec. 157, p. 492.) By the next section (158, p. 496) it is povided: “In counties of this class the officers shall receive as compensation for the services required of them by law, or by virtue of their office, the salaries and fees fixed by law as compensation,” and the County Government Act does not regulate the compensation of officers belonging to that class, that being left to the law organizing the body politic constituting the first class,—to wit, the city and county of San Francisco. By section 8£ of article XI of the constitution, adopted by way of amendment, November, 1896, it is declared: “Where a city and county'government has been merged and consolidated into one municipal government, it shall also be

The charter for the government of the consolidated city and county of San Francisco, adopted January 26, 1899, contains provisions for the election and terms of officers under the same, and fixes their compensation, in pursuance of section 8-J of article XI of the constitution. It is provided in said charter, under the chapter with reference to the assessor, that, “He shall receive an annual salary of $4,000, which shall be in full compensation for all his services.” Provision is made in the same chapter for the appointment of the necessary clerks and deputies to assist the assessor in the discharge of his duties, prescribing a fixed salary in each case to compensate them for their services. For the purpose, as it would appear, of removing all doubt, it is provided under the article on miscellaneous subjects (sec. 34): “The salaries provided in this charter shall be in full compensation for all services rendered, and every officer shall pay all moneys coming into his hands as such officer, no matter from what source derived or received, into the treasury of the city and county within twenty-four hours after receipt of the same.”

It is claimed, however, on the part of the respondent that the duty of the assessor, as provided in the charter, is merely to assess taxable property within the city and county, and that the collection of the poll-tax is not a part of his duty as such assessor. But the poll-tax is collected by him in his official capacity as assessor, and for all of his services as assessor he is fully compensated by way of a fixed salary, and is expressly required to pay “all moneys coming into his hands as such officer, no matter from what source derived or received, into the treasury of the city and county.”

Under the provisions of the Political Code with reference to proceedings against delinquent purchasers of state lands, the register of the state land office is required to furnish to the district attorney of each county a list of delinquent purchasers of land within his county, and, under his direction, the district attorney is to commence suit for the foreclosure of the interest

Judgment reversed and cause remanded, with directions to the trial court to enter judgment for appellant upon the stipulated facts.

Harrison, J., Temple, J., Henshaw, J., and Garoutte, J., concurred.

I concur in the judgment; but I do so solely on the ground that the people of the state, by adopting amendment to the state constitution in. 1896, deliberately yielded up the power to fix the proper compensation of county officers in the city and county of San Francisco. No question as to “municipal affairs” arises in the case. Under the said constitutional amendment the compensation of “county officers” may be fixed in the charter; and “compensation” is as broad a word as could be used in that connection. It might well be argued that it would be good policy for the state to encourage the collection of a tax so difficult to collect as a poll-tax, by allowing extra compensation therefor; but that matter should have been considered when the amendment 8-|- was adopted.

I dissent. The poll-tax is levied and collected under laws passed in pursuance of this mandate of the constitution: “The legislature shall provide for the levy and collection of an annual poll-tax, of not less than two dollars, on every male inhabitant of this state” over twenty-one and under sixty years of age, except paupers, idiots, insane persons, and Indians not taxed. Said tax shall be paid into the state school fund.” (Art. XIII, sec. 12.)

The proceeds of the tax being appropriated by the constitution exclusively to the state school fund, it is not competent for the legislature to divert it from that destination and turn it, or any portion of it, over to a county or to a city and county.

In the ease of San Luis Obispo County v. Felts, 104 Cal. 60 , it was very seriously questioned whether the law was eonstitu

‘1 The legislature shall not pass local or special laws in any, of the following enumerated cases: . . . Tenth, for the assessment or collection of taxes. ’ ’ (Art. IV, sec. 25.)

The policy of the state plainly exhibited by the provisions of the Political Code and the County Government Act, is to encourage a full collection of the poll-tax—a tax enjoined by the constitution—by offering a compensation to the collector strictly proportioned to the amount collected. These are general laws for the collection of a tax, and should have a uniform operation, but if the conclusions of the court are correct they are set aside and their policy defeated by the special provisions of a local law. This is going far beyond anything hitherto claimed for municipal charters. They are, it seems, to super

But aside from these considerations, which are not adverted to in the opinion of the court, I dissent from its conclusions upon the grounds which are there considered.

There is a conceded conflict between the provisions of the charter and the Political Code. The Political Code says to the assessor : You shall have fifteen per centum of all poll-taxes collected, as a compensation for your trouble in making the collection. The charter says: I will pay you a salary of four thousand dollars a year for making property assessments. I have no directions to give you in regard to collecting poll-taxes, but if you do collect any, you must hand over to the city and county all that the state allows you for making the collection. "Which of these two conflicting laws is to govern? The answer to this question is furnished by section 6 of article XI of the constitution, which subjects all charter provisions to the control of general laws, except in municipal affairs. If, therefore, the collection of poll-taxes is not a municipal affair, the general law governs and the charter provision must give way. We have seen that the collection of the poll-tax is anything but a municipal affair. The proceeds go exclusively to the state, and as to their collection the interests of the municipality and those of the state are directly opposed. The larger the collection, the better for the state; the smaller the collection, the better for the locality. The state school fund, it is true, is reapportioned to the counties, but not in proportion to their respective contributions. The apportionment is based upon the school census, and no matter how few the poll-taxes paid by a county, her proportion of the school fund will remain just the same.

This conclusion is in no degree invalidated by the decision in County of Kern v. Fay, cited in the opinion of the court, or Summerland v. Bicknell, 111 Cal. 567 , which is cited by counsel. Neither of those cases involved a conflict between a statute of the legislature, passed in the usual way, and a municipal charter. In each the only question was whether a later and more special provision of a statute superseded or repealed an earlier and more general provision of another statute, and that question was decided, upon ordinary rules of statutory construction, in favor of the later and more specific provision.

The concurring opinion of Justice McFarland rests altogether upon the supposed effect of section 8^ of article XI of the constitution, which empowers the freeholders of the city and county in framing their charter to “provide for” the compensation of county officers.

I think it is giving an unwarranted extension to the due operation of this clause to hold that the freeholders may not only fix the amount of the salary or other compensation payable out of the local treasury for official services, but may also go to the extent of defeating the general policy of the state with reference to a state affair, by depriving an agent of the state of the additional compensation payable exclusively by the state, and allowed as a special inducement to the performance of a duty in which the people of the entire state have a direct interest. No such extended operation of the clause in question is necessary to subserve municipal interests. The more restrictive operation is necessary to the protection of the general interest. We have seen that the legislature is forbidden to pass local oí special laws in relation to the collection of taxes. As long as county assessors are made the agents of the state for the collection of poll-taxes in the counties generally, they must perform the same duties in cities and counties organized under freeholders’ charters, and it is of vital importance to

The principle which I have thus endeavored to enforce is illustrated by the decision of this court in Ex parte Dolan, 128 Cal. 460 . There it was claimed that the city of Santa Barbara had by its charter conferred exclusive jurisdiction upon its police court in certain classes of misdemeanors which by the general law are within the jurisdiction of justices’ courts. The argument in favor of the superior force of the charter provisions was pretty much the same as it is here, but it was held, upon grounds that seem incontrovertible, that the power of the freeholders to establish a police court and define its jurisdiction did not warrant the attempt to make that jurisdiction exclusive within the city limits. The statute giving the like jurisdiction to justices of the peace was held to be unaffected by the charter. And so in this case the charter should be held effective in what it gives to the county officer out of the local treasury, but wholly ineffective in what it attempts to take away from the state officer, so far as that is secured to him by a general law of the state and paid by the state.

I think the judgment of the superior court should have been affirmed.