Opinion
APPEAL from a judgment of the Superior Court of Placer County.
The plaintiff was sheriff of Placer County, and ex-officio tax collector. As such, upon the direction of the controller of State, he brought suits in the name of the People against the Central Pacific R.R. Co., to recover delinquent taxes for the fiscal years 1880, 1881, and 1882, and the actions were transferred to the United States Circuit Court. Subsequently, and while those actions were pending, the board of supervisors of the county directed the district attorney to commence an action in the name of the county against the same railroad company, and for the same delinquent taxes due the county, and authorized the district attorney to consent to a judgment for a less sum than that sued for. Such judgment was entered, and the whole amount of the judgment was collected by the district attorney, and paid into the county treasury. This action was brought to recover plaintiff's fees or commissions for the collection of the taxes.
COUNSEL:
John M. Fulweiler, and Hart & White, for Appellant.
J. E. Prewett, for Respondent.
OPINION
The remaining facts are stated in the opinion of the court. THE COURT.
The plaintiff, not having collected the taxes in question, is not entitled to commissions or fees for their collection. Not having been prevented from collecting them by the act of the defendant, plaintiff is not entitled to recover of defendant any sum as money had and received to and for his use and benefit.
Judgment affirmed.
CONCUR
THORNTON, J., concurring.
The tax collector of Placer County was not authorized by law to receive less than the whole amount of taxes (State and county) levied and assessed on one piece of property. The taxes claimed to have been collected in this case were those levied and assessed for county purposes only. The State taxes were not collected. The plaintiff did not then collect the whole amount of taxes levied and assessed on one piece of property. Conceding that it must be regarded that plaintiff, as tax collector, did collect the amounts claimed to have been paid, he did not comply with the law in making such collection. Not having complied with the law, I cannot see what title he has to any commissions.
I think the judgment should be affirmed.
MYRICK, J., dissented.