Matter of Dodge

VAN DYKE, J. 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 *514 retain the commissions allowed for the collection of poll-taxes, ■under section 3862 of the Political Code. After directing, in the preceding sections, how, when, and by whom the poll-taxes are collected, section 3862 provides: “The assessor for services rendered in the collection of poll-taxes shall receive the sum of fifteen per cent; and the collector for services rendered in the collection of poll-taxes on the delinquent list, including the publication, shall receive the sum of twenty-five per cent on all delinquent poll-taxes collected by him. ’ ’ This section has remained the same since the last amendment of 1877-1878. 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 *515 competent in any charter framed under said section 8 of said article XI to provide for the manner in which, the times at which, and the terms for which the several county officers shall be elected or appointed, for their compensation, and for the number of deputies that each shall have, and for the compensation payable to each of such deputies.” 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 *516 of the purchaser in such lands, and for this service it is provided: “The district attorney is entitled to receive ten dollars for each suit brought, to be taxed as costs.” (Pol. Code, sec. 3553.) Pay, then district attorney of the county of Kern, brought a number of suits of this character and recovered judgments therein, and thereupon he presented a claim to the state board of examiners for the costs and expenses incurred in prosecuting said suits, including ten dollars each for his compensation. The claim so presented was allowed and paid to said Pay as such district attorney, who turned over the money so received to the county, less the amount specified as attorneys’ fees, which he retained and claimed as his own, amounting in the aggregate to the sum of $630. Kern County, according to the provisions of the County Governmlent Act, at that time belonged to the thirty-fifth class, and it was therein provided that the officers of that class should receive as compensation certain specified salaries, including the district attorney, and further declared: “The salaries and fees provided in this act shall be in full compensation for all services of every kind and description rendered by the officers therein named, either as officers or ex officio officers, their deputies and assistants.” In a suit brought by the county against Pay, to recover the fees in question, it was claimed by the defendant that, as district attorney, in prosecuting the suits in question, he was not acting for the county, but his services were performed entirely for the state, and that the fees for such services came from the state, and not from the county. On appeal by the defendant from a judgment in favor of the county, it is said by this court, in affirming the judgment, with reference to the contention of the district attorney: “It would seem quite clear that under the provisions of the County Government Act of 1893 the district attorney is not permitted to retain for his own use any moneys collected by him in his official capacity, that the salary prescribed by said act is intended to compensate said officer in full for all services rendered by him.” (County of Kern v. Fay, 131 Cal. 547.) The provisions of the freeholders’ charter under consideration, requiring the city and county officers to pay into the county treasury all moneys received by them in their official capacity, is more explicit, if possible, than the provisions of the County Government Act in the case of district attorney Fay. It is clear that *517 it was intended that the salaries should be in full for all official services of every kind whatever, and that the officer is not entitled to retain to himself any fees or perquisites for the performance of official duty. Such fees or perquisites, if any received, belong to the public corporate body that employs him. 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.