Opinion
Department One
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
The law under which the money was collected was unconstitutional, as being an interference with the power of Congress to regulate commerce, and was not valid as a police regulation. Consequently the money did not belong to the state, and the defendant was not obliged to pay it into the treasury. (Passenger Cases, 7 How. 283; Henderson v. Mayor of New York , 92 U.S. 259; Chy Lung v. Freeman , 92 U.S. 275.) If the money did belong to the state, the contingency on which it is made payable has not happened, as no lazaretto or lepers' quarters had been established by the board of supervisors. (Pol. Code, secs. 2952, 2955.)
W. W. Morrow, and H. G. Platt, for Appellant.
Attorney-General Marshall, and Langhorne & Miller, for Respondent.
The defendant is not entitled to credit for alleged deputies' salaries and attorney's fees which he has not paid. (Ramsey v. Gardner, 11 Johns. 439; Giddings v. Searle , 103 Mass. 311; Wynkoop v. Seal , 64 Pa. St. 361; McCroskey v. Mabey , 45 Ga. 327; Tracy v. Swartwout, 10 Pet. 81; Elliott v. Swartwout, 10 Pet. 137; Erskine v. Hohnbach, 14 Wall. 613; Moore v. Alleghany , 18 Pa. St. 55.) A state officer cannot refuse to account and pay over to the state funds collected by him for public uses, for the reason that the law under which he made the collections was illegal or unconstitutional. (Placer County v. Astin , 8 Cal. 303; McKee v. Monterey , 51 Cal. 275; Commonwealth v. Philadelphia , 27 Pa. St. 492; People v. Soloman , 54 Ill. 461; Waters v. State, 1 Gill, 302; O'Neal v. School Commissioners , 27 Md. 344; Moore v. Alleghany , 18 Pa. St. 55; Sessums v. Botts, 34 Tex. 335; Williams v. Holden, 4 Wend. 223; Smyth v. Titcomb , 31 Me. 272; State v. Cunningham, 8 Blackf. 339; People v. Brown , 55 N.Y. 180; Shoemaker v. Grant , 36 Ind. 175; Cooley on Taxation, 497.)
JUDGES: Myrick, J. Ross, J., and McKinstry, J., concurred.
OPINION
MYRICK, Judge
Action to recover from the defendant moneys received by him, as commissioner of immigration, under section 2955 of the Political Code. The court below allowed the defendant for his salary and office expenses actually paid, and rendered judgment against him for the surplus, with damages and interest as specified in section 437 of the Political Code.
1. The defendant, having assumed to act under a statute of this state, and having collected moneys according to the letter of that statute, cannot be heard to say that the statute was in conflict with the constitution of the United States, that he was unauthorized to collect them, and that he was not bound to pay them over to the proper officer. Neither was he authorized to retain the moneys collected in excess of his salary and office expenses if the proper authorities failed to provide a suitable lazaretto or lepers' quarter. In collecting the money, he assumed to act as a state officer, and as between him and the state, he is bound by that assumption. (Placer County v. Astin , 8 Cal. 303; McKee v. Monterey County , 51 Cal. 275.) So one who holds himself out as a public officer, or acts as an officer de facto, is estopped to deny that he is an officer de jure, even on a criminal prosecution for malfeasance in office. (State v. Stone, 40 Iowa 547; Randall v. Dusenbury , 63 N.Y. 645.)
2. The court did not err in refusing to allow, as items of office expenses, sums not paid to deputies. It is true, section 2969 was added to the Political Code, as a new section, after defendant received the moneys, but under that section there is full provision for compensation to the deputies if they are or shall be entitled thereto.
3. Under the statute, the defendant cannot retain the money because a person of whom money was collected has instituted an action against him to recover it. Having collected it, he should have let it take the regular course, viz., payment to the state treasury.
Judgment and order affirmed.