56 Colo. 515 | Colo. | 1914
delivered the opinion of the court:
In the classification of counties for the purpose of fixing the fees, Otero county was placed in the fourth class. Sec. 2521 Rev. St. Sec. 2537' is as follows:
“The county treasurer shall charge and receive the following fees and commissions: Upon all moneys received by him for town and city taxes, * # # and upon all school taxes in counties of the first class one per cent; in counties of the second class, one per cent; in counties*518 of every other class, one per cent on school taxes, and two per cent on town and city taxes.
“Upon all moneys received by him for taxes of every other kind in counties of * * * fourth class, three per cent. * * *
‘‘For receiving all moneys other than taxes in counties of every class, one per cent.
“For each certificate of purchase, in counties of every class, twenty-five cents; * * *
“For each certificate of redemption in counties of every class, twenty-five cents; * * *,” e^°-
Sec, 2554 provides that all fees collected by county officers shall be paid over to the county treasurer, and be by him kept in separate funds, to be known as the fund of the particular county officer from whom it comes, among which is “The County Treasurer’s Commission and Fee Fund;” and the section further provides that all salaries or compensation of the county treasurer, his deputies or assistant clerks, shall be paid out of that fund, and no other, and that any balance left to the credit of any fund, after all the salaries and compensations provided for shall have been paid to the end of the year, shall be placed to the credit of the General Fund. Sec. 2565 places Otero county in the fourth class for the purpose of providing for and regulating the salaries of county officers. Sec. 2570 fixes the salary which county treasurers in counties of the fourth class shall receive as their only compensation and for services at $2,100.00. These statutes mentioned relate to two things: First, fees and commissions. Second, salaries or compensation. The fees and commissions are to be collected by the treasurer, not as his compensation for the particular work for which the fee may be prescribed, but for the purpose of creating a fund out of which his salary or compensation
It is to be observed that sec. 2537 fixes a commission of three per cent in counties of the fourth class on all moneys received by the treasurer for taxes of every kind other than town, city and school taxes, and one per cent for receiving all moneys other than town taxes.
. In 1901, the legislature passed an act for the organization and government of irrigation districts. Sess. Laws 1901, p. 198. Sec. 19 of that act made the county treasurer of the county in which the office of any irrigation district is located ex-officio district treasurer of that district; made him liable upon his official bond, as provided by law in other cases as county treasurer, for malfeasance, misfeasance or failure to perform any duty, as county or district treasurer, prescribed in the act, and made it his duty to receive and receipt for all moneys belonging to the district. It made it the duty of the county treasurer of each county comprising any irrigation district, in whole or in part, to collect and receipt for all taxes levied as provided in the act, in the same manner, and at the same time, as is required in the receipt for and collection of taxes upon real estate for county purposes. The county treasurer of each county, comprising a portion only of any irrigation district, excepting the county treasurer of the county in which the office of the district was located, was required to remit to the district treasurer, on the first Monday of every month, all the moneys collected or received on account of said district. Every county treasurer was required to keep a Bond Fund, and a General Fund. The Bond Fund comprised all moneys received on account of the interest and principal of the bonds issued by the districts. The General Fund comprised all other moneys received. The district treas
“All such district taxes collected and paid to the county treasurers as aforesaid shall be received by said treasurers in their official capacity, and they shall be responsible for the safe keeping, disbursement and payment thereof the same as for other moneys collected by them as such treasurers.”
Sec. 20 of the act is as follows:
“The revenue laws of this state for the assessment levying and collection of taxes on real estate for county purposes, except as herein modified, shall be applicable for the purposes of this act, including the enforcement of penalties and forfeiture for delinquent taxes.”
The moneys collected by the county treasurer for district taxes, whether the district is in one or more counties, comes clearly within the description of money upon which the county treasurer by sec. 2537 was required to charge and receive a commission. There is nothing in the act of 1901 which says that such commission shall not be charged. On the contrary, as shown by the above synopsis of and quotation from sec. 19 and sec. 20, these district taxes were to be collected and paid to the county treasurers and received by them .in their official capacity. It was made the duty of the county treasurer of each county comprising an irrigation district to collect and receipt for taxes “in the same manner and at the same time as is
In 1905, the legislature passed another act. entitled, “An act in relation to irrigation districts.” Sec. 21 of that act, with the exception of a few verbal changes of no importance here, is identical with sec. 19 of the act of 1901, except that to the section was added a proviso as follows: “Provided, Said county treasurer shall not receive any commission for the collection of said district’ taxes, or any extra compensation for acting as such district treasurer, other than the regular salary as such county treasurer of his respective county. ” This proviso is plain. By it the commissions for the collection of district taxes provided by sec. 2537 were not to be charged, and the district treasurer was to receive no extra compensation for his services as such, but the regular salary as county treasurer was to compensate him for all services rendered as county treasurer and as district treasurer, if he happened to be district treasurer also.
In 1907, sec. 21 of the act of 1905 was amended with a few verbal changes not important here, and with the proviso changed to read as follows: “Provided, said county treasurer shall receive as his sole compensation for the collection of such taxes, such amount as the board of directors may allow, to be not less than twenty-five dollars ($25.00), nor more than one hundred dollars ($100.00), which compensation shall be considered as a part of the regular salary of such county treasurer as provided by law.” This last proviso is somewhat confusing if the word “compensation” is to be taken in the
We will now discuss the question of commissions on moneys received from the sale of district bonds. .Take for example a district that extends into 'three counties. The treasurer of the county in which the office of the district is located is the district treasurer. Neither of the two other county treasurers is a district treasurer for that district. Each of the two other county treasurers must, however, collect the district taxes in his county, and remit them to the one who is district-treasurer. The latter, as county treasurer, must also collect the district taxes in his county. He places the taxes collected by him and those remitted to him by the two other treasurers in the fund of the district. If there is a sale of bonds of the district the other two treasurers would not receive any of the proceeds. It would all go to the county treasurer who is the district treasurer, and it would go to him, not because he is county treasurer, but because he is district treasurer. If the law had made some other person, district treasurer than a county treasurer, and had said, as it does, that the district treasurer should receive and receipt for all the moneys of the district, none of the county treasurers who collect the district taxes would ever receive any of the proceeds of the bonds. If the district is in one county only, the same is true, the treasurer would receive the proceeds of the sale of bonds in his ex-officio capacity as district treasurer. It is plain from this that the proceeds of the sale of bonds does not' come into the hands of the county, treasurer as moneys
In Mitchell v. Wheeler, 20 Colo. App. 159, 77 Pac. 361, it was held that the county treasurer is not entitled to a commission on money paid into his hands for the redemption of land sold to individuals for delinquent taxes, nor to charge any fee for entering on his books an assignment of a certificate of purchase. It was contended in that case that the statute authorized commissions on money paid in redemption of property from tax sales by virtue of the clause in sec. 2537, “for receiving all moneys other than taxes in counties of every class one per cent.” The court said:
“This commission is not intended to apply to moneys paid to the treasurer on account of redemption from tax sales, but is intended to apply to moneys received by the treasurer on account of licenses, and from other sources of revenue.”
Taxes, licenses, etc., are revenue. District taxes are revenue, but it cannot be said that money derived from the sale of bonds for which a district becomes indebted is a revenue in the sense of taxes, licenses, etc., which was the sense intended by sec. 2537. In School District v. Cole, 4 Wash. 395, 30 Pac. 448, it was held that a county treasurer, who by statute was made ex-officio treasurer of a school district of his county, was not entitled to a commission or percentage for receiving and disbursing the proceeds of certain school bonds of the district, whether he acted in the performance of such duties as the treasurer of the county, or of the district.
We will next take up the constitutional questions as raised. It is contended that the construction given to the proviso of the act of 1907 renders it obnoxious to sec. 15 of art. XIY of the constitution. This section provides that for the purpose of providing for and regulating the compensation of county and precinct officers the general assembly shall, by law, classify the counties according to population, and grade, and fix the compensation of the officers accordingly, and that “Such law shall establish scales of fees to be charged and collected by such of the county and precinct officers as may be designated therein for services to be performed by them, respectively, and where salaries are provided, the same shall be payable only out of the fees actually collected in all cases where fees are prescribed. All fees, perquisites and emoluments above the amount of such salaries, shall be paid into the county treasury.” It is said that the proviso delegates to the board of directors of the irrigation district the power to fix the fee therefor, and also the power to fix the compensation of county officers. It is also contended that the construction given to the provisos in the acts of 1905 and 1907 renders them obnoxious to sec. 14 of art. II, which provides that private property shall not be taken for private use except as therein provided. It is contended that to place the entire burden upon the county to pay for work occasioned by and beneficial to only a part of the county is the taking, for private pur
Judgment affirmed.
Decision en banc.