FREEMAN MILLS v. H. S. SARGENT, 36 Cal. 379

By the Court, Sawyer, C.

J. : This is an action to try the right to the office of Tax Collector for the County of San Joaquin, brought by Mills, who was duly elected Sheriff of said county at the regular general election in 1867, for the term of two years from the first Monday of March, 1868, against Sargent, who, at the same election was regularly elected Treasurer and' ex officio Tax Collector for a similar term, in pursuance of a proclamation of the Board of Supervisors, that a Treasurer and ex officio Tax Collector would then be elected, and who, after such election, regularly qualified and entered upon the duties of said two offices.

Under the law, as it stood prior to April 2d, 1866, the Sheriff was ex officio Tax Collector in the County of San Joaquin, and a Sheriff and ex officio Tax Collector was elected to said offices by the people at the regular election of 1865, for the term of two years from the following March.

On the 2d of April, 1866, while said term was still running, a new Act was passed by the Legislature repealing the provision that the Sheriff" should be ex officio Tax Collector, and enacting, that “ the Treasurer of the County of San Joaquin shall be ex officio Tax Collector of said county;” and, thereupon, the Treasurer, who had been elected in September, 1865, for a term of two years, while the former law was in force, claimed that, by virtue of said law, he at once became Tax Collector for the balance of the term.

In a contest between the said officers we held, that, under the Constitution which required a Tax Collector to be elected, as such, by the people, it was incompetent for the Legislature, after a Tax Collector had been elected for a term by the people, to transfer the office from the party so elected with a view to that office, to another party who was not elected with any view to a discharge of so important duties. (Rynerson v. Kelsey, 34 Cal. 470.) It is now claimed by appellant, that the necessary result is, that the whole Act is unconstitutional.

We certainly did not so hold, but expressly limited our decision to the point involved.

We said: “But so far as the Act assumes to transfer the duties of the office of Tax Collector from the Sheriff, an officer elected in contemplation of performing the duties of Tax Collector, to the Treasurer, an officer not selected by the electors of the county as Tax Collector, from the first Monday of March, 1866, to the first Monday of March, 1868, it is manifestly in conflict with the spirit and letter of the Constitution, hereinbefore quoted.” There is no force in the argument that because the Act could not have effect so far as it attempted to transfer the duties from an officer, already elected by the people expressly to discharge them, to one not elected with that view, the law cannot take effect at all with reference to any part of its subject matter.

On the contrary, we are clear that the law did take effect upon the general subject matter, so that any Treasurer, who should thereafter be regularly elected, would be ex officio Tax Collector. At the next general election the Board of Supervisors, in their proclamation, made in pursuance of the statute, stated that a Treasurer would he elected, who would be ex officio Tax Collector; and the people, under the law, elected a Treasurer with the express understanding that he would act in the double capacity of Treasurer and Tax Collector, and this is in strict conformity with the constitutional requirements.

We have no doubt that respondent, Sargent, is lawfully exercising the duties of the office of Tax Collector. The judgment is, therefore, affirmed, and the remittitur directed to be issued forthwith.