THOMAS W. LATHROP v. J. W. BRITTAIN and J. B MEACHAM, 30 Cal. 680

By the Court, Currey, C. J.: This action was brought to recover the possession of twelve hundred and fifty-five acres of land, and also the sum of twenty-five thousand dollars damages, the alleged value of the use and occupation of the land during its possession by the defendants from the date of the alleged ouster to the time the action was commenced, which was nearly four years; On the trial of the issue joined between the parties, it was in evidence that one L. M. Brittain became the owner of the demanded premises on the 18th of January, 1859, and at that time entered into the possession thereof.

The defendant, J. W. Brittain, was in possession of the property when the action was commenced. His position was, in effect, that his possession was rightful, and that he could not be lawfully required to yield it until the plaintiff’s right to it was affirmatively established. As to this question there was no controversy, but to maintain his alleged right and title the plaintiff offered in evidence a tax deed executed by virtue of a sale for taxes imposed for the fiscal year commencing in 1859.

When offered, the deed was objected to on the part of the defendants, on the ground that it was executed by a person who had no authority under the statute or otherwise to execute the same. The Court sustained the objection. To this ruling the plaintiff excepted, and then with the defendants submitted the case; whereupon the Court gave judgment for the defendants. The main point made by counsel in argument is in respect to the authority of the Under-Sheriff to represent the Sheriff in his capacity of Tax Collector in the sale of the property for taxes and the execution of the deed.

Under-Sheriff cannot act as Tax Collector. The seventh

section of the Sixth

Article of the Constitution, existing at the time the tax sale was made and when the deed was executed, required the Legislature to provide for the election by the people of County Clerks, Sheriffs and certain other officers, and to fix by law their duties and compensation ; and the same

section provides that “ County Clerks shall be ex officio Clerks of the District Courts in and for their respective countiesbut no provision is to be found in the Constitution under which the Sheriff, as Sheriff, may perform the duties of Tax Collector. The thirteenth

section of the Eleventh

Article of the Constitution provides that “ Assessors and Collectors of town, county and State taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for State, county or town purposes is situated.” Thus it is seen that the paramount law of the land requires the Tax Collector to be elected by those alone who are concerned— that is, by the qualified electors of the district, county or town in which the officer named is to exercise the office of Tax Collector.

To carry into effect this constitutional provision, the Revenue Act of 1857 provides that “ except in those counties where by special Act it is provided that some other person shall be Tax Collector, the Sheriff of each county shall be Tax Collector in his county, and shall collect all taxes except municipal taxes and poll taxes.” The mode provided for the election of Tax Collector is an attempt to comply with the constitutional requirement to the effect that the Tax Collector shall be elected by the electors immediately concerned. Offices of Sheriff and Tax Collector are distinct.

By the law, the person elected to the office of Sheriff is invested with another distinct office, to which he is elected at the same time by the same qualified electors. Though he is elected eo nomine Sheriff, he is in fact elected to tíie office of Tax Collector, as a distinct office; otherwise the requirement of the thirteenth

section of the Eleventh

Article of the Constitution must be held to have been totally evaded and disregarded from the beginning. That the two offices were separate and distinct was a point recognized in People v. Love, 25 Cal. 528. In the case of People v. Edwards, 9 Cal. 292, Mr. Justice Field said : “ The offices of Sheriff and Tax Collector are as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other.” We apprehend it would be a fruitless effort to attempt to demonstrate that they constitute but a single office.

The Act concerning Sheriffs prescribes what, duties the Sheriff shall perform. By that Act the collection of taxes, or the sale of property because of the non-payment of t^xes, is not of the Sheriff’s duties. The Act concerning Sheriffs authorizes the Sheriff to appoint an Under-Sheriff, and defines what shall be his powers; but it nowhere authorizes the Sheriff, as Tax Collector, to appoint an Under Tax Collector, with powers coequal with those of the Tax Collector himself, or otherwise.

When the electors designate by their votes who shall be their Sheriff, they do it with the knowledge that by virtue of his office he has authority to appoint an Under-Sheriff, and thus to clothe him with the powers which the Act.concerning Sheriffs declares he shall possess. When they vote for the same person to be their Tax Collector, they know that the law nowhere provides for a delegation of his authority to other hands. .

They are willing, it is to be presumed, to intrust the delicate and responsible duty of collecting the taxes, and, if necessary, of enforcing their payment, to the person whom they elect for the purpose, while they would not consent to intrust his appointee with that duty. The fifteenth

section of the Act concerning Sheriffs provides that “ during the absence of the Sheriff from his county, pr where the Sheriff from sickness or any other cause is unable to discharge the duties of his office, the Under-Sheriff shall exercise the powers and perform the duties of that office, and at other times shall perform such services relating to the duties of Sheriff as may be required of him by that officer.” (Laws 1851, p. 192.) What are the powers, duties and services comprehended by the language so employed ?

The only answer which can be made to the inquiry is, those powers, duties and services enumerated in the Act itself. If by legislation subsequent to the Act of 1851, other powers and duties than those mentioned in that Act have been conferred upon the Sheriff as Sheriff, then those additional powers and duties are conferred upon the Under-Sheriff upon the same conditions as those expressed in the Act of 1851. But the powers and duties of the Tax Collector do not pertain to the office of Sheriff, though the Sheriff is elected by the qualified electors of the particular district, county or town, the Tax Collector.

We deem it unnecessary to say more in the maintenance of the views above indicated. We are of the opinion the deed was properly excluded on the ground assigned for the objection made to it on behalf of the defendants. Judgment affirmed. Neither Mr. Justice Rhodes nor Mr. Justice Sanderson expressed any opinion.