[No. 4,047.]
W. M. DONAHUE v. THE COUNTY OF EL DORADO.
Fees of Collector of Taxes.—If the statute allows a collector of taxes, for his own use, a percentage for collections of State tax, and also a percentage on the amount of County tax collected, and provides that he shall pay the percentage allowed him on the county tax into the county salary fund, and that it shall become a part of said fund, the collector cannot claim the per centage to be paid into the salary fund as his own fees or property.
Appeal from the District Court, Eleventh Judicial Distict, El Dorado County.
The plaintiff was elected Tax Collector of El Dorado County, at a special election, held on the 30th day of
*249March, 1872, and qualified on the 8th day of April, 1872, and entered upon the discharge of the duties of the office. Prior to the 15th day of January, 1873, he, as such collector, collected of county taxes, other than school tax, various sums, fifteen per" cent, of which, amounting to $5,890 64, he paid into the county salary fund, as required to do by the fifth section of the Act of March 16, 1872, (statutes 1872, p. 377.) On the 5th day of February, 1873, he presented to the Board of Supervisors his claim against the county for said sum, but they rejected it, and this suit was commenced, February 8, 1873, to recover the same. The defendant demurred to the complaint, and then answered.
The facts were admitted in the pleadings, and the Court below, on the motion of the plaintiff, gave him judgment on the pleadings for the amount claimed. The defendant appealed.
G. J. Carpenter, for the Appellant, argued that the plaintiff could not claim the fifteen per cent, as his own fees, and cited The People v. The Board of Supervisors, etc., 28 Cal, 435, and Patton v. The County of Placer, 30 Cal. 177.
George E. Williams and Creed Haymond, for the Respondent, argued that the demand was a county charge, and cited, secs. 5 and 8, Statutes 1871-2, pp, 378, 379; Statutes 1869-70, p. 198; Sec. 4, Statutes 1871—2, p. 378, and Political Code, secs. 3,748, 3,751, 3,753, 3,758, 3,759, 3,760, 3,764, 3,769, and 3,797.
By the Court, McKinstry, J.:
The fifth section of the Act of March 16, 1872, provides: “Said collector for the collection of State taxes, except taxes for school purposes, shall receive six per cent, on the first ten thousand dollars collected, four per cent, on all over ten thousand and under twenty thousand dollars, and two per cent, on all over twenty thousand dollars, which shall be for his own use and benefit. For the collection of *250county taxes, except taxes for school purposes, he shall receive fifteen per cent, of the gross amount collected, which he shall pay into the ‘ County Salary Fund,’ and which shall become a part of said fund.”
Judgment reversed and cause remanded.
Neither Mr. Justice Crockett nor Mr. Justice Rhodes expressed an opinion.