Opinion
Civ. No. 836.
December 13, 1910.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.
The facts are stated in the opinion of the court.
Jas. F. Tevlin, for Harry I. Mulcrevy, Appellant.
L. A. Redman, and Jewel Alexander, for Fidelity and Deposit Company of Maryland, Appellant.
Percy V. Long, City Attorney, Edwin F. Williams, Assistant City Attorney, and J. F. English, Assistant City Attorney, for Respondent.
This action was brought to recover of defendant, Mulcrevy, county clerk and ex-officio clerk of the superior court of the city and county of San Francisco, and his codefendant, as surety on his official bond, the sum of $2,972, with interest from certain dates as set forth in the complaint, on account of moneys received and collected by him in his official capacity as such clerk, in certain naturalization proceedings which occurred during his term of office. Upon motion of plaintiff, and after defendant had answered, the court ordered judgment for plaintiff upon the pleadings. This appeal is from the judgment, and raises only questions of law.
The facts are in substance as follows: Defendant Mulcrevy was, at the November election in 1905, elected county clerk for the city and county of San Francisco for the term of two years commencing on the eighth day of January, 1906. After his election and on the first day of December, 1905, he made and filed his official bond, with the defendant corporation as surety, which bond was duly approved as required by law. This bond contained the provision and condition that Mulcrevy should "faithfully perform all official duties that now are or may hereafter be imposed upon or required of him by law, ordinance or the charter of the city and county of San Francisco." By his election and qualification as such clerk he became and was thereafter during his term of office ex-officio clerk of the superior court of said city and county. After he had been so elected and had so given his official bond and entered upon the discharge of his duties, and on the twenty-ninth day of June, 1906, Congress passed an act (34 Stats. at Large, 596, [U.S. Comp. Stats., Supp. 1909, p. 97]), entitled: "An Act to establish a Bureau of Immigration and Naturalization, and to provide for a uniform rule for the naturalization of aliens throughout the United States." Under said act exclusive jurisdiction as to naturalization is conferred upon special federal courts and upon all courts of record in any state or territory having a seal, a clerk, and jurisdiction in law or equity in which the amount in controversy is unlimited. The duties of the clerks of the courts are set forth, as to taking declarations of intention to become citizens in triplicate, and as to sending duplicates to the Board of Immigration and Naturalization, the receiving of petitions up to the time of final report to the bureau, and other services detailed in said act.
The provisions of the act so far as material are as follows:
"The clerk of any court collecting such fees is hereby authorized to retain one-half of the fees collected by him in each naturalization proceeding; the remaining one-half of the naturalization fees in each case collected by such clerks, respectively, shall be accounted for in their quarterly accounts which they are hereby required to render the Bureau of Immigration and Naturalization.
" Provided, That the clerks of courts exercising jurisdiction in naturalization proceedings shall be permitted to retain one-half of the fees in any fiscal year up to the sum of three thousand dollars, and that all fees received by such clerks in naturalization proceedings in excess of such amount shall be accounted for and paid over to such Bureau as in case of other fees to which the United States may be entitled under the provisions of this Act. The clerks of the various courts exercising jurisdiction in naturalization proceedings shall pay all additional clerical force that may be required in performing the duties imposed by this Act upon the clerks of courts from fees received by such clerks in naturalization proceedings. And in case the clerk of any court collects fees in excess of the sum of six thousand dollars in any one year, the Secretary of Commerce and Labor may allow to such clerk from the money which the United States shall receive additional compensation for the employment of additional clerical assistance, but for no other purpose, if in the opinion of said Secretary the business of such clerk warrants such allowance."
After the act went into effect Mulcrevy collected $5,944 as clerk of the superior court in naturalization proceedings, and accounted for and paid over to the Bureau of Immigration and Naturalization one-half thereof, as required by the act. The other one-half he kept himself, and has not paid over the same to the city and county of San Francisco, his contention being that it was intended by the act of Congress as pay for his extra work and clerical hire in such naturalization proceedings, and that the fees were not received by him in his official capacity, but merely as an agent designated by the act of Congress to perform certain services in naturalization proceedings.
The charter of the city and county of San Francisco under which Mulcrevy was elected, and which was in force at the time his bond was given, provides as follows: "Every bond shall contain a condition that the principal shall faithfully perform all official duties then or that may thereafter be imposed upon or required of him by law, ordinance or this charter, and that at the expiration of his term of office he will surrender to his successor all property, books, papers and documents that may come into his possession as such officer. (Sec. 3, art. XV.) . . . 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 of San Francisco within twenty-four hours after receipt of the same." (Sec. 34, art. XV.)
The salary of Mulcrevy as such county clerk was fixed in the charter as $4,000 per annum. He was also allowed, for the purpose of aiding him in the discharge of his official duties, a chief registrar at an annual salary of $2,400; a cashier at an annual salary of $1,800; twelve courtroom clerks at an annual salary of $1,500 each; five registry clerks at an annual salary of $1,800 each; ten assistant registry clerks at an annual salary of $1,500 each; sixteen copyists at an annual salary of $1,200 each, and four clerks for the police court, at an annual salary of $1,500 each. The total salary list as so fixed and allowed for the office amounts to $58,600 per annum; and it would seem that it was intended to cover all services that might be required of the county clerk, and the pay of all deputies and employees that might be necessary in performing such services.
Moreover, in addition to the above salaries it is expressly provided in the charter (sec. 35, art. XV) that when any officer, board or department shall require additional deputies, clerks or employees, application shall be made to the mayor therefor, and upon such application the mayor shall make investigation as to the necessity for such additional assistants, and that if he find the same necessary, he may recommend the supervisors to authorize the appointment of such additional deputies, clerks or employees, and thereupon the board of supervisors, by an affirmative vote of not less than fourteen members, may authorize such appointments and provide for the compensation of such appointees. (See reference to the application of this section in Harrison v. Horton, 5 Cal.App. 415, [ 90 P. 716].)
The charter having expressly provided a salary for the county clerk, and a salary for his many assistants, deputies and copyists, states that such salary shall be "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 of San Francisco within twenty-four hours after receipt of the same." The money came into the hands of Mulcrevy as such clerk, although the source from which it was derived and received was the amounts paid to him as fees in naturalization proceedings as prescribed and provided for in the act of Congress; and it was his duty to pay it into the treasury of the city and county. Language could not be more explicit. It does not admit of doubt or quibble as to its meaning. "No matter from what source derived" means all the money coming into his hands by virtue of and by reason of his being such county clerk and ex-officio clerk of the superior court. It was by reason of his election as county clerk and his taking office and giving his bond, and receiving a salary of $4,000 per annum, that he was enabled to receive the fees for naturalization proceedings in the superior court. He received them in his official capacity. He was ex-officio clerk of the superior court in which the fees were collected under the provisions of the act of Congress. The act authorized him to retain one-half the fees collected by him; but as to what he was to do with such half so retained did not concern the United States government, but was a matter solely between himself and the city and county of San Francisco. It was his duty to receive and file complaints, answers, pleadings, petitions in probate, and to perform all services required of him, for which he received fees. It was his duty to perform all services required of him by the laws of the state at the time he took office, and all services that might be required of him by any subsequent law of the state enacted after his accession to office. Such fees were not his, but belonged to the city and county, he being in one sense the agent of the city and county in collecting such fees. It was equally his duty to perform services in naturalization proceedings after the passage of the law subsequently enacted by Congress, and to receive fees for such services, but the fees when so received belonged to the city and county of San Francisco. It was not for him to say that the services were performed under the authority of the United States, and not under the authority of the state. His bond contained the condition that he would faithfully perform all official duty that might thereafter be imposed upon him by law. The act of Congress was a law.
This case is the same in principle as In the Matter of Dodge, 135 Cal. 512, [ 67 P. 973], where it was held that the county assessor was not entitled, under the charter, to retain for his own use percentages on poll taxes collected under the state law and for the benefit of the state. It was there said, after discussing the provisions of the charter invoked here: "The provisions of the freeholders' charter under consideration, requiring city and county officials 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 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 for 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 employed him."
The views herein expressed are in accord with the views of the supreme court of Wisconsin, as reported in Barron County v. Beckwith, 142 Wis. 519, [135 Am. St. Rep. 1079, 124 N.W. 1030], where the same question was discussed. It was there claimed, as it is claimed here, that the official duty of the clerk did not include services in naturalization proceedings under a law subsequently enacted by Congress, but the court held otherwise, saying: "The argument is ingenious; but it seems to us that the statute was intended to cover all fees and emoluments coming to the clerk in his official capacity while holding the office upon a salary basis. We think that it cannot be successfully maintained that if, during the salary term, the legislature should increase the fee bill under the fee system as to clerks of courts, that the clerks, though on a salary basis, could retain, in addition to the salary, the extra fees provided for by legislative enactment after the salary had been fixed. . . . The courts of the state designated in the act have power to naturalize aliens, and the clerks perform services as clerks in such proceedings, and receive fees as clerks for such services; and whether such fees are fixed by act of Congress or by state law, they are fees or emoluments of the office within the meaning of chapter 411, Laws of 1901."
Our attention is called to Eldredge v. Salt Lake County (Utah), 106 P. 939, where the supreme court of Utah held that the clerk may retain such fees under the act of Congress in question. While we do not approve of the doctrine as laid down in the Utah case, it is sufficient to say that it can be readily distinguished from the case at bar. There the law provided that the county officers "shall be required by law to keep true and correct account of all fees collected by them, and to pay the same into the proper treasury and the officer whose duty it is to collect such fees shall be held responsible on his bond for the same." It does not appear from the opinion to have been a condition of the bond, or the duty of the clerk, to perform all official duties that may have been imposed upon him by law, nor did the statute require the clerk to pay all moneys, "no matter from what source derived," into the treasury of the county.
It is claimed by defendant surety company that even if defendant Mulcrevy is liable, the surety company is not, for the reason that the bond was given for the performance of official duties, and that it was not part of Mulcrevy's official duty to act in behalf of the United States and receive fees in naturalization proceedings. But the bond was conditioned that Mulcrevy would faithfully perform all official duty that might thereafter be imposed upon him by law; and the law thereafter imposed upon him the duty of performing services in naturalization proceedings. It was also his official duty to turn the money over to the treasury of the city and county of San Francisco within twenty-four hours after he received it. The liability of the surety follows.
The judgment is affirmed.
Hall, J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 9, 1911.