104 Cal. 60 | Cal. | 1894
This is an action brought by the county against the county assessor and his sureties to recover the amount of certain percentages of personal property taxes and of the state and road poll taxes, claimed and withheld by him as his legal compensation for making the collections.
The complaint contains three counts, the first, for three hundred and fifty dollars, being six per cent of the personal property tax; the second, for three hundred and fifty dollars, being fifteen per cent of the state poll tax; and the third, for three hundred and ten dollars, being fifteen per cent of the road poll taxes. On the first cause of action the superior court gave judgment for the defendants. On the second and third causes of action the judgment was in favor of the plain
In support of their appeal the defendants cite various provisions of the Political Code and the county government law, which clearly authorize the assessor to retain as his compensation for his services fifteen per cent of all poll taxes collected by him; but the respondent contends that, as to the state poll tax, all these provisions are in conflict with the mandate of the constitution which appropriates that tax exclusively to the support of the public schools; and, with respect to the road poll tax, the contention is that no law in existence prior to the election of this assessor gave him the collection of the road poll tax, and to allow him a percentage for collecting it under a law passed subsequent to his election would be to increase his compensation contrary to the inhibition of the constitution against any increase of the compensation of public officers after their election. The first section of the constitution cited by counsel for respondent in support of its contention is section 12 of article XIII, which reads as follows:
“ The legislature shall provide for the levy and collection of an annual poll tax of not less than two dollars on every male inhabitant of this state over twenty-one and under sixty years of a^e, except paupers, idiots, insane persons, and Indians not taxed. Said tax shall be paid into the state school fund.”
In connection with this they also cite section 6 of article IX, which reads as follows:
“The public school system shall include primary and grammar schools, and such high schools, evening schools, normal schools, and technical schools as may be established by the legislature, or by municipal or district authority; but the entire revenue derived from the state school fund and the state school tax shall be applied exclusively to the support of primary and grammar schools.”
It is upon the last clause of the latter section that particular reliance is placed, and especially the word
As bearing upon this question it is material to note the fact that from the very beginning of legislation in California until the adoption of the present constitution the collectors of poll taxes were always authorized to retain a percentage of their collections as compensation for their services. The various statutory provisions on this subject are cited in the briefs of counsel, but we deem it sufficient in this place to refer only to sections 3839, 3862, and 1857 of the Political Code, as they existed from its adoption in 1872 up to the adoption of the constitution in 1879, in which the substance of the earlier statutes is embodied. It is material, we say, to note this uniform course of legislation, because the framers of the new constitution must be presumed to have been familiar with it, and we are, therefore, entitled to expect that if they intended to effect a radical change in the system their purpose will be found plainly and unequivocally expressed. We do not, however, see any thing in either of the sections of the constitution above referred to, or in both combined, which clearly deprives the legislature of the power to make the poll taxes pay the expense of collection. It is fair and reasonable and just that they should be charged with such
But counsel for respondent further contends that the only law under which Felts can claim a percentage of poll taxes was passed after his election, and, therefore, it is, as to him, inoperative, by reason of section 9 of article XI of the constitution, which prohibits any increase of compensation of county officers after their election or during their term of office. His argument is, that the enactment of section 4334 of the Political Code, on March 10,1891, and subsequent to the election of Felts, operated a repeal, by implication, of the various statutory provisions then in force allowing compensation for collecting poll taxes, and that Felts can claim nothing under the law thereafter enacted. We think it very doubtful, in the first place, w'hether there is any such necessary conflict between the terms of section 4334 of the Political Code and the laws in question as to operate a repeal by implication; but, assuming that there was such direct conflict that both could not operate together, no repeal took place, because the amendment to the code did not take effect until sixty days after its passage, before which time the county government law had been passed, and took effect March 31, 1S91. (Stats. 1891, p. 295.) This was the last expression of the legislative will, and must prevail (Goodwin v. Buckley, 54 Cal. 295); and it allows the compensation claimed. (See sec. 216.)
For these reasons we conclude that the superior court erred in its judgment as to the percentage of state poll taxes.
As to the road poll tax, that .is a tax collected under the law, and not, as assumed in respondent’s argument, by virtue of the county ordinance passed subsequent to the election of Felts. By section 2652 of the Political Code the supervisors of each county are authorized to levy a poll tax not exceeding three dollars, and by the same law the road overseer, when charged with the duty of making the collection, was allowed fifteen per cent of
The part of the judgment appealed from is reversed.