People ex rel. Patch v. Board of Supervisors , 2 Cal. Dist. Ct. 65 ( 1857 )

Hager, J.

— By the “ revenue act ” of 1857, it is made the duty of the assessor to complete the assessment roll, and deliver it to the clerk of the board of supervisors, on or before the first Monday in August, 1857. After this hoard disposes of the matters presented to them as a board of equalization, their clerk, on or before the third Monday in September, is required to deliver the corrected roll to the county auditor, who is required to deliver a certified copy to the tax collector, § 8. The tax collector, upon receiving a copy of the corrected roll, is directed to proceed forthwith to collect the taxes, § 12. When the tax is paid to the collector, he shall mark the work “ paid ” opposite to the name or property of the person liable for the tax, and give a receipt therefor, § 31. The auditor, upon receiving the roll, is required to charge the tax collector with the full amount of the taxes levied, § 34. The tax collector, on the first Monday in each month, must pay to the county treasurer all moneys collected for the state or county, and on the same day, present the treasurer’s receipt for the same to the auditor, § 36. When the receipt of the treasurer is presented, the auditor must credit the tax collector with the amount thereof, and on the first Monday in February in each year, he must credit him with the amount of taxes delinquent, § 35. The county treasurers are required to settle with the state comptroller and pay over to the state treasurer the taxes collected for the use and benefit of the state, § 38.

By the amended act of 1855, p. 120, the tax collector of this county is allowed a certain per centage on all moneys collected and paid over by him, which is charged to the state and county proportionately to the amounts received by them respectively. The act consolidating the government of this city and county provides that “all taxes assessed upon real and personal property in this city and county shall be payable, and be paid, directly to the treasurer thereof,” and in default of such payment the tax collector shall collect the same by seizure and sale of the property as provided by law; the taxes due, however, may be paid to the treasurer at any time before the property is sold, and on the production,. to the tax collector, of the proper receipt and payment of his legal fees, for services rendered, up to that time such property shall be discharged,” Statutes of 1856, p. .167 § 77. And further, that the tax collector, upon final settlement, shall be charged with, and pay to the treasurer, all taxes collected by him, and not previously paid over, etc., § 78.''/' The present law, fixing the fees of the tax collector, was in force and remaining unchanged by it or by the provisions of the amended revenue act of 1857; there are, then, no rates of compensation fixed by the act of 1857 different from, or changing those existing at the time it was passed.

The “ consolidation act” does not, in express terms, say that the party assessed shall pay the tax directly to the treasurer, but that all taxes shall be paid directly to the treasurer. The':, treasurer is not named as the collector, but as the recipient, the depositary of the taxes. The act of 1857 does, in express terms, authorise the tax collector to collect all taxes, give receipts therefor, and also directs him to pay them over to the treasurer, who is the depositary under this act. If the tax moneys do not go through the tax collector’s hands, he is not entitled to commissions, for he is only entitled to charge them on the moneys “ collected and paid by him.” The one act and the amendments thereto are general laws; revenue is the object and subject matter, and it authorises and provides the entire mode of assessing and the machinery for collecting it. The other act is intended to provide a government for the city and county of San Francisco. It partakes of the character of a special law, and is local in its operation. Revenue is not its subject matter, but an incident connected ¿herewith, and dependent upon the general laws relating to that subject. The several statutes are not, then, strictly speaking, pari materia. So far as respects the taxes assessed and collected for the state, there can be no question but the tax collector, and not the treasurer, is the only person authorised to collect or receive the taxes from the persons assessed. There is more difficulty, however, in regard to the taxes levied for city and county purposes. It is intended by the §77 of the “consolidation act” that the treasurer alone is authorised to receive the taxes prior to a default for their payment, then there is a conflict between this act and that of 1857, and the exact meaning of 44, 56 of tbe act of 1857 becomes important. Rut according to my views, if it is admitted there is an existing conflict, then this § 77 cannot be observed without violating the provisions and to some extent deranging the operation of the subsequent general law. It must in such case yield, and full force and effect must be given to the direct and positive provisions of the act of 1857, to wit: that the tax collector is authorised to collect all taxes and directed to pay them over to the treasurer. It results, then, that the relator is entitled to his commissions as fixed by the act of 1855, on all taxes assessed by the city and county of San Francisco for city and county purposes, which have been collected by the relator and paid over to the county treasurer, and that defendant should audit his bills accordingly. Peremptory mandamus to issue accordingly.