ALAMEDA COUNTY, Respondent, v. HENRY P. DALTON et al., Appellants, 148 Cal. 246

LORIGAN, J. The defendant and appellant Henry P. Dalton was the assessor of Alameda County during the year 1899, and the other defendants and appellants were his official bondsmen. As such assessor, Henry P. Dalton, during said year, collected state poll-taxes amounting to $25,501, and retained for his own use $3,825.15, being fifteen per cent thereof, to which he claimed that he was entitled as commissions allowed by law for collecting the same, and turned the rest into the treasury of said county. This action was brought to recover the amount so retained by him.

In their answer defendants admitted the facts alleged in the complaint, but claimed that defendant Henry P. Dalton retained said sum of $3,825.15 as a matter of right, because allowed him as compensation under the laws of the state for collecting said state poll-taxes. Judgment was rendered for plaintiff upon the pleadings, and defendants appeal therefrom, and come here on the judgment-roll alone. The sole question presented on this appeal is whether the appellant Henry P.

Dalton, as such assessor of Alameda County, was entitled to receive and retain such percentage for his own use and benefit, and its solution involves a matter purely of statutory construction. The state poll-tax, compensation for the collection of which is the matter in question here, is a per capita tax, which, under

section 12 of

article XIII of the constitution, is authorized to be levied and collected by the legislature, and which is required to be paid when collected into the state school fund. It is distinctively a state tax, and, as said by this court in County of San Luis Obispo v. Felts, 104 Cal. 64, [37 Pac. 781], “It is fair, reasonable, and just that they [the poll-taxes] should be charged with such expense [of their collection], and, indeed, the fact that they are exclusively a state tax makes it peculiarly appropriate that the agents of their collection should be compensated by a percentage of their collection, rather than out of the salary or general funds of the county. ” It is provided by

section 3840 of the Political Code that the assessor must collect this tax, and by

section 3862 that “the assessor for services rendered in collection of poll-taxes shall receive the sum of fifteen per cent. ’ ’ In the case above quoted from—San Luis Obispo County v. Felts—the constitutionality of the latter

section was in question and decided to be valid. For the purpose of regulating the compensation of county officers the several counties of the state were by the County Government Act of 1897 (Stats. 1897, p. 452, c. 277) classified, and under such classification the county of Alameda became (as the court will take judicial notice) a county of the third class—the only one of that class in the state. The sections of that act, in as far as they affect the rights of assessors of counties of the third class to retain commissions for the collection of poll-taxes, are as follows: Subdivision 7 of

section 160 (p. 503) declares that “It is hereby further provided, that in counties of this class [the third class] the assessor shall receive no commission for his collection of taxes on personal property, nor shall such assessor receive any compensation or commission for the collection of poll-taxes' or road poll-taxes. ...” And

section 215 (p. 572) of the same act provides : ‘ ‘ The salaries and fees provided in this act shall be in full compensation for all services of every kind and description rendered by the officers herein named; . . . provided . . . the assessor shall be entitled to receive and retain for his own use six per cent on personal property tax collected by him . . . and fifteen per cent of all amounts collected by him for poll-taxes and road poll-taxes, and also, five dollars per hundred names returned by him as subject to military duty, as provided in

section 1901 of the Political Code; . . . provided, however, that in counties, and cities and counties, of the first, second, and third classes, the assessor shall receive no commission for the collection of taxes on personal property, nor shall such assessor receive any compensation for making out a military roll of persons returned by him as subject to military duty, as provided by

section 1901 of the Political Code. ...” These sections constitute the law upon the subject of the compensation of the assessor for the collection of state poll-taxes. Each

section is directed to that subject, and assumes to deal completely and exclusively with the matter. It is quite apparent at first glance, however, that the above-quoted provisions are radically at variance with each other. Subdivision 7 of

section 160 declares that the assessor shall not receive compensation for the collection of poll-taxes, while

section 215 not only declares that he shall receive it, but that he shall retain it for his own use and benefit. Both of these sections cannot be made to apply to the county of Alameda, and the question presents itself, Which one of them prevails as to that county—whether the prohibition in subdivision 7 of

section 160 is to be considered as a special exemption to the general provision in

section 215, or whether the sections are irreconcilable, and, if they are, must

section 215, which is later in position in the general act than subdivision 7 of

section 160, be deemed the latest expression of legislative intent upon the subject, and for that reason prevail over the subdivision of the prior section? It is insisted by respondent that the court should apply the rule, as stated in Bateman v.

Colgan, 111 Cal. 586, [44 Pac. 240], that “Where two statutes treat of the same subject, one being special and the other general, unless they are irreconcilably inconsistent, the latter, though latest in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject-matter, so far as coming within its particular provisions.” But the rule there announced cannot avail this respondent, because it can be applied only in cases where there is no irreconcilable inconsistency between the special and the general statute.

In the case at bar it is quite apparent that there is such irreconcilable conflict between these two provisions of the statute. There is no way in which they can be harmoniously construed. By the very terms of both sections special reference is made to counties of the third class, of which, as we say, we will take judicial notice that Alameda County is of that class. Nor can it be said with exactness that

section 215 is a general provision, as far as the county of Alameda is concerned. It is as specially directed to that county as is subdivision 7 of

section 160. It deals with the matter of the compensation of the assessor of Alameda County as well as does the prior section, as it specifically provides that in the class of coimties to which Alameda belongs the assessor shall receive no compensation for collection of taxes on personal property, or for the making of the military roll. But. conceding, however, that

section 215 is general, notwithstanding it refers to and applies specifically to Alameda County as a county of the third class, still the general rule stated in Bateman v. Colgan, 111 Cal. 586, [44 Pac. 240], cannot apply, because that rule has application only where the special and general provisions are not radically inconsistent. Here there can be no doubt .of such inconsistency in the sections. A comparison of both discloses that by the earlier section (160) the assessor of Alameda County is prohibited from receiving any compensation for the collection of personal property taxes, for making the military roll, or for the collection of poll-taxes. By the subsequent

section that officer is still prohibited from receiving compensation for the collection of personal property taxes and for the making of the military roll, but is expressly authorized to receive and “retain for his own use” fifteen per cent of the poll-tax collections contemplated by

section 3862 of the Political Code. The one

section prohibits him from even receiving compensation by way of commission in the collection of poll-taxes; the other

section provides that he may not only receive, but retain, it for his own benefit. It would be difficult to suggest a more clear and direct inconsistency and repugnancy between distinct provisions of

an act purporting to deal with the same subject. Under this condition of conflicting legislation the rules of

interpretation and construction are clear. In Black on

Interpretation of Laws (p. 118) it is said: “There is no rule of law which prohibits the repeal of a special act by a general one. Nor is there any principle forbidding such repeal without the use of express words declarative of the legislative intent to repeal the earlier statute.

The question is always one of intention, and the purpose to abrogate the particular enactment by a later general enactment is sufficiently manifested when the provisions of both cannot stand together, and it is' a cardinal doctrine in the construction of statutes that, if possible, full effect shall be given to all their parts.” (State v. Williamson, 44 N. J.

L. 165.) And when, upon a consideration of different sections or parts of a statute it is apparent that an irreconcilable conflict exists between them, the controlling rule of construction is that the latest legislative expression upon a given subject must govern; that where inconsistent provisions are found in

an act that provision which is latest in position in the act is deemed to express the last, final legislative intent, and prevails over prior repugnant provisions, though all are found in the same act and are intended to take effect at the same time. The rule is thus stated in People v. Dobbins, 73 Cal. 259, [14 Pac. 860] : “It is an old and well-settled rule that, when two laws upon the same subject, passed at different times, are inconsistent with each other, the one last passed must prevail.

So it has always been the rule that, when different provisions of a statute, all passed at the same time, could not be reconciled, the one that came last in point of position must prevail. And this was upon the theory that effect should always be given to the latest rather than to an earlier expression of the legislative will; the presumption being that the latter part of the statute was last considered.” This rule, is further supported by Dillon v. Bicknell, 116 Cal. 111, [47 Pac. 937]; Davis v.

Whidden, 117 Cal. 618, [49 Pac. 766]; Sutherland on Statutory Construction, sec. 160; Sedgwick on Statutory and Constitutional Law, 415; 26 Am. & Eng. Ency. of Law, 2d ed. p. 619. Applying these rules of construction to the case at bar, as subdivision 7 of

section 160 and

section 215 are irreconcilably inconsistent upon the subject as to what compensation the assessor of Alameda County shall receive for the collection of poll-taxes,

section 215, being the last expression of legislative intent upon the subject, must control. It follows therefore that the assessor of Alameda County was justified by the provisions of the latter

section in receiving and retaining to his own use the fifteen per cent of the state poll-tax collected by him, and the judgment denying him this right is therefore reversed, with directions to the lower court to enter a judgment for defendant upon the pleadings. Henshaw, J., and McFarland, J., concurred.