| Idaho | Dec 26, 1892
The appellant, as assessor and tax collector of Bingham county, made application to the district court of the fifth judicial district for a writ of mandate to compel the respondent, as treasurer of said county, to pay to appellant $1,563.42, commissions claimed to be due for the collection of $26,038.61, as the state proportion of property taxes levied in said county, and $1,431 as the state proportion of the poll taxes collected by him in said county, and paid over to the treasurer thereof. An alternative writ was issued. The respondent appeared, and by demurrer and answer raised the issue as to whether, under the facts stated in the application, it was the duty of the respondent to pay the amount claimed to appellant; or, in other words, whether respondent’s refusal was wrongful or unlawful. A trial of the issue thus raised was had before the court, and a peremptory writ of mandate refused, and judgment entered in favor of the respondent, dismissing said petition, and for costs. This appeal is from the judgment.
The contention of appellant is that it was the duty of respondent, as county treasurer, to pay the compensation claimed out of said taxes before turning the money over to the state treasurer. The respondent contends that he is prohibited, by
The compensation claimed by the appellant is claimed under section 1679 of the Revised Statutes of 1887, so far as the property tax is concerned, and under section 2154, as to commissions on poll taxes. Section 1679 provides as follows: “The compensation for the services of auditors, assessors and tax collectors and county treasurers, respectively, for the duties performed by them in assessing, collecting, receiving and paying over territorial taxes, or the territorial portion of any taxes, are as follows: To the assessor and tax collector, as full compensation for his services and the services of his deputies, seven (7) per centum of the amount by him paid over; to the county treasurer and auditor, each, three (3) per centum of the amount paid over by the treasurer.” Section 2154, so far as it relates to the compensation to be paid to assessors and tax collectors, is as follows: “The assessor shall receive not less than twelve (12) per centum, and not to exceed fifteen (15) per centum of all per capita taxes collected, and not less than four (4) per centum, and not to exceed six (6) per centum, of all other taxes by him collected.” Prior to the adoption of the constitution, the assessor and tax collector was entitled to Teeeive as compensation a certain percentage of all taxes collected, regardless of the aggregate amount thereof; but section 7, article 7 of the constitution, declares, among other things, that he shall receive annually, as compensation for his services, not more than $3,000, and not less than $500, while section 8 of said article 7 declares that such compensation shall be paid by fees or commissions, or both, as prescribed by law. Said section 1679 prescribes the per centum to be paid to the tax collector for the collection of all state taxes, and section 2154 prescribes his minimum and maximum per centum on per capita taxes, and on all other taxes. Section 2158 of the Revised Statutes declares the method, and out of what fund, said compensation shall be paid. Prior to the adoption of the eonstitu