Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 28 Cal. 430 at 443.
Original Opinion of July 1865, Reported at: 28 Cal. 430.
JUDGES: Rhodes, J., on petition for rehearing. Mr. Justice Sawyer expressed no opinion.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on petition for rehearing:
We are satisfied of the correctness of the conclusions to which we have arrived in this cause, but in argument we used language more comprehensive than the necessities of the case required, or perhaps was justified by the statutes under consideration. We said that " all the officers charged with the maintenance of that government (the government of the city and county of San Francisco) were named in the Act; and the compensation to which each of them was entitled, whether by way of salaries, fees or commissions, was expressly mentioned--unless the Tax Collector formed an exception--and in case where the compensation was payable out of the city and county Treasury, the amount, or the maximum amount, was specially fixed in the Act." This does not comprehend such officers or employees as are suggested by counsel in his petition for rehearing, such as the officers of the Fire Department, officers and employees of the Hospital, City Attorney, Judge of the Superior Court, etc. We intended to include those officers who, under some name, are more particularly charged with the government of a city or a county, as Mayor, Aldermen, Supervisors, Clerk, Sheriff, Marshal, Treasurer, Assessor, etc.; and to officers charged with functions of the character of those mentioned, as well as to some others named in the Consolidation Act, our remarks properly and correctly apply.
If the position of the learned counsel can be sustained, that " where the offices have existed before, the compensation is left to existing laws," it will be found that the grand purpose of the Consolidation Act, which is apparent without great familiarity with the Act, and with no acquaintance with its practical workings--that is, economy in the administration of the municipal government--will be defeated, and a large portion of the wholesome restrictions in the Act become nugatory. We see no difficulty in maintaining that when the Tax Collector is required to collect the delinquent taxes, and in the discharge of that duty he is permitted by the revenue laws to collect from the delinquent, or from the purchaser at the tax sale, certain fees over and above the taxes, and is required to pay over to the Treasurer the taxes collected by him, there is left in his hands the fees he collected. And we find as little difficulty in understanding that after the general revenue law has committed to the Tax Collector the collection of all the taxes, and has allowed certain commissions on the collection both of State and city and county taxes, and the law has directed him to pay over all the taxes without any deduction for commissions, and has saved the restrictions of the Consolidation Act, one of which was that " no payment can be made from the Treasury, or out of the public funds of the county, unless the same be specially authorized by this Act; " that if the Consolidation Act has not " specially authorized" the payment to the Tax Collector of such commissions out of the funds of the city and county, the Board of Supervisors are not authorized to allow or audit a claim for such commissions, and the Tax Collector is not entitled to receive them; and that if there is no restriction to prevent him from receiving the commissions on the funds collected for the State, he is entitled to have them allowed and paid.
It appears obvious that the appellant's construction of subdivision third, of section ninety-five, of the Consolidation Act, holding that it authorizes the payment of the commissions in controversy, cannot be maintained, for that subdivision merely specifies the General Fund as the fund out of which fixed salaries or compensations shall be paid; and if his construction could be maintained, it would result in the absurd conclusion that the commissions for collecting the State tax would be payable out of the General Fund of the city and county.
Rehearing denied.
Mr. Justice Sawyer expressed no opinion.