Opinion
Appeal from a judgment of the Superior Court of San Luis Obispo County.
COUNSEL:
W. J. & E. Graves, D. S. Gregory, F. Adams, V. A. Gregg, and J. R. Patten, for Appellant.
W. H. Spencer, and John Scott, for Respondent.
JUDGES: In Bank. Myrick, J. Ross, J., McKinstry, J., Sharpstein, J., Morrison, C. J., and McKee, J., concurred.
OPINION
MYRICK, Judge
This action was brought to recover of defendant moneys collected and received by him as county recorder as fees. The demurrer of defendant to the complaint was sustained on the ground that the complaint did not state facts sufficient to constitute a cause of action.
The defendant, King, was county clerk; under section 4105, Political Code, he was ex-officio auditor and recorder. An act passed in 1870 had fixed the fees of the recorder. The act of March 21, 1876 (Stats. 1875-76, p. 608), fixed the salary of county clerk at eighteen hundred dollars per annum, and directed him to appoint a deputy county clerk to act as deputy county recorder, whose salary was fixed at nine hundred dollars per annum; provision was made for the appointment of another deputy recorder, if necessary, at the same salary. Section 4 of that act declared [11 P. 179] that no compensation should be allowed or paid any of the officers named in the act, other than the compensation and salaries prescribed therein (with certain exceptions not here involved); and that the officers entitled to charge, collect, or receive any fees or other compensation, of whatever kind or nature, allowed by law, for services rendered by them or their deputies in their several official capacities or for the performance of duties appertaining to said offices, must collect and safely keep the same, and on the first Monday in each month pay the total amount received into the county treasury, to be applied to the payment of the current expenses of the county.
We fail to see how there could be any question as to the duty of the defendant. We do not deem it necessary to occupy space in replying to the argument made on his behalf. Can it be a reasonable construction of the act of March 21, 1876, that the defendant, as county recorder, was to have deputies to perform the duties of the office, such deputies to be paid by the county, and he (the principal) have the fees of the office for his own use?
As the defendant received the moneys collected by him and held the same in trust for the county, the action is not barred; no demand was made until the day before suit.
The judgment is reversed and the cause is remanded, with directions to overrule the demurrer, the defendant to have leave to answer.