Regan v. County of San Mateo

HOUSER, J., Dissenting.

I dissent.

In this case, a judgment that was rendered by the superior court was affirmed on appeal to the District Court of Appeal. (Regan v. County of San Mateo, (Cal. App.) [90 Pac. (2d) 366].) Although, thereafter, a petition for hearing by this court was granted, on further consideration of the appeal, I find that I am in accord with the opinion which was prepared by Mr. Justice Ward of the First District Court of Appeal, and believe that it should meet with the approval of this court, and consequently that it should be adopted as its opinion. It is as follows:

“This is an appeal by the assignees of Harry E. Jenkins, formerly treasurer of the county of San Mateo, from an adverse judgment in an action against the county for inheritance and transfer tax commissions.

“Harry E. Jenkins was the duly elected, qualified and acting treasurer of San Mateo county from January 5, 1931, until January 7, 1935. Thereafter, under the provisions of a county charter which had in the meantime become effective, for the appointment of a treasurer, he was selected, duly appointed and served in that capacity until O'ctober 28, 1,935. From the date of his election until August 14, 1931, Jenkins, as treasurer, collected and retained certain commissions on inheritance and transfer taxes to which he was entitled under the provisions of section 4290 of the Political Code. On this last-mentioned date there became effective the County Government Act. (Stats. 1931, p. 1168.) Section 17 of this act (page 1174) provided that all fees, perquisites, commissions and other moneys received by any county official, excepting the coroner, public administrator and certain county clerk registration deputies, should be paid into the county treasury and belong to the county. This provision is explicit. It prohibits the retention by any county officer of commissions, fees, perquisites or any other moneys received by any officials other than those specifically excepted. In the same year the county of San Mateo was raised from the twenty-first to the fifteenth 'class (secs. 4005c and 4006, Pol. Code) and the salaries of certain county officers were raised, including that of the county treasurer, but the act provided that the salaries ‘ shall be in full for all compensation to said officials’. (Stats. 1931, p. 1168, at pp. 1170 and 1174.) The salary was, therefore, the only compensation the treasurer could accept for his official service. (County of Kern v. Fay, 131 Cal. 547 [63 Pac. 857] ; County of San Diego v. Schwartz, 145 Cal. 49 [78 Pac. 231].)

“Appellants contend that the change in the classification of the county did not confer upon the treasurer the benefit of the increased salary during his unexpired term (art. XI, sec. 9, Const, of Cal.; Smith v. Mathews, 155 Cal. 752 [103 Pac. 199]), and that his salary for that period remaining the same he was officiating under the previous statute (Pol. Code, see. 4250) ; that the Inheritance Tax Act (Stats. 1921, as amended) permitted the collection of inheritance tax commissions and that therefore the privilege of collecting them could not be affected before the end of his elective term. The right or privilege to the commissions was entirely independent of the statute fixing the salary of the county treasurer. The legislature had the power to bestow this perquisite and by the same token the right to take it away.

“On July 1, 1933, the new charter of San Mateo county became effective. Section 13 of article VI of the charter (Stats. 1933, p. 2967) provides that a county officer authorized to collect fees or moneys must on the next business day pay into the county treasury the receipts so collected. The charter relative to the salaries of certain county officers, etc., superseded the statute, but the right to retain the commissions here in question had already been abrogated. The county charter did not countenance the retention of the inheritance tax commissions during the elective or appointive terms of the treasurer.

“Appellants contend that the charter does not prohibit the retention of inheritance tax commissions by ex-officio officers. Section 5 of article XIII (Stats. 1933, p. 2976) provides that the compensation paid to elective and appointive officers shall be in full for all services rendered. A county charter provision dealing with matters of compensation controls over a general law. Section 13 of article VI (Stats. 1933, p. 2967) applies to ‘every county officer’. (Lesem v. Getty, 23 Cal. App. (2d) 57 [72 Pac. (2d) 183] ; Dodge v. City and County of San Francisco, 135 Cal. 512 [67 Pac. 973] ; San Francisco v. Mulcrevy, 15 Cal. App. 11 [113 Pac. 339] ; Mulcrevy v. San Francisco, 231 U. S. 669 [34 Sup. Ct. 260, 58 L. Ed. 425] ; County of Alameda v. Cook, 32 Cal. App. 165 [162 Pac. 405].) If the freeholders in framing the San Mateo county charter desired that its officers, ex officio or otherwise, should pay to the county all the perquisites over the salaries fixed in the charter, they had a right to so provide.

"In Reuter v. Board of Supervisors, 220 Cal. 314, 326 [30 Pac. (2d) 417], the court in dealing with another question arising out of the provisions of this same charter, said: ‘The general purpose of section 7% of article XI of the Constitution was to give local self-government or county home rule to counties of the state by means of charters framed under said constitutional amendment. That this was the intent and purpose of the section clearly appears from the language of the section itself, which declares that, after the charter has been approved by the legislature "such charter shall become the charter of such county and shall become the organic law thereof relative to the matters therein provided . . . and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter.” ’ ”