COUNTY OF BUTTE, Respondent, v. D. P. MERRILL et al., Appellants, 141 Cal. 396

McFARLAND, J.— The defendant Merrill was county tax-collector of Butte County from January, 1895, to January, 1899; and this is an action against him and his bondsmen to recover the sum of $3,245.05, collected by him as such tax-collector during his said term of office and converted to his own use. Judgment went in the court below in favor of plaintiff for the said amount of money, and defendants appeal from the judgment.

The money sued for is part of the whole amount of license-taxes collected by appellant Merrill, and consists of money which he contends he had the right to retain as commissions allowed him by law for the collection of license-taxes. Whether or not he has that right is the question here involved.

Appellant contends that he is entitled to retain the money here in question by virtue of an ordinance of the board of supervisors of Butte County, passed February 10, 1893, and another ordinance passed March 3, 1894,—both passed before Merrill was elected to or commenced his said term of office,— which ordinances provided that for the collection of taxes; for business licenses, other than for the sale of liquor, the collector should receive as compensation ten per cent of the amount collected, and should receive five per cent for the collection of taxes for liquor licenses.

If said provisions in said ordinances were valid, then respondent was not entitled to recover in this action. But the lower court correctly held that when Merrill took the office of tax-collector the law made it his duty to collect all licenses (Ventura County v. Clay, 112 Cal. 63.) It further correctly held that the board of supervisors had not the power either to create the office of license-tax collector or to fix his compensation. (County of El Dorado v. Meiss, 100 Cal. 273.) It was decided in Dougherty v.

Austin, 94 Cal. 601, that a board of supervisors has nothing to do with fixing the compensation of a county officer. Appellants also rely upon the act of the legislature, approved March 27, 1895, (Stats. 1895, p. 267,) which in terms approves and legalizes the commissions theretofore allowed by boards of supervisors for the collection of license-taxes ; but the court below correctly held that this was merely an unauthorized attempt, retroactively, to give the collector increased compensation over that fixed by law when his term commenced. Appellants also rely in their briefs, though not in their pleadings, upon

section 215 of the County Government Act of 1897 (Stats. 1897, p. 572), which allows a commission of five per cent for the collection of license-taxes; but as that act was passed after the commencement of Merrill’s term of office, the court below correctly decided that it could not be held applicable during his term, without violating the constitutional provision against an increase in compensation during the term of an incumbent.

It is contended that the judgment cannot .stand, because it is for taxes collected between January, 1895, and January, 1899, while the complaint only includes the period between January, 1895, and .January, 1898.

But it was averred in the answer that Merrill was collector, and had collected the taxes in contest, “until the second day of January, 1899,” and in other parts of the answer the period between January, 1895, and January, 1899, is referred to as the period during which the matters in litigation arose; and the parties entered into a written “statement of facts,” in which it is stated that Merrill as tax-collector, “between the seventh day of January, 1895, and the first day of January, 1899, received the sum of $3,245.05.” It sufficiently appears, therefore, that the ease was tried on the theory that it involved Merrill’s whole term, and that an amendment to the complaint as to the time within which the money was collected was waived.

It is averred in the complaint that the action was com-" menced in compliance with an order of the grand jury made under

section 929 of the Penal Code, which gives the grand jury the power to order the institution of such an action.

Section 929 was passed in 1897, and appellants contend that it is unconstitutional and void, because its subject was not embraced in the title of the act under which it was enacted. It is not necessary to determine whether the action could have been maintained without any reference in the complaint to the action of the grand jury, for the title of the act was sufficient. It is as follows: “An act to amend sections 925 and 928 of the Penal Code of the State of California, to add a new

section to said code, to be known as

section 929, relating to grand juries, their duties and powers.” (Stats. 1897, p. 204.) The main objection appears to be, that the

section is not criminal in its nature, and therefore could not be constitutionally put into -the Penal Code; but it has been frequently held that a statutory provision otherwise valid is not void because found in any particular code; that the codes blend into each other, and that no one of them is limited to a particular subject. There are no other points calling for special notice. The judgment appealed from is affirmed. Lorigan, J., and Henshaw, J., concurred.