Redwood City v. Grimmenstein

Thornton, J.

— The questions to be decided in this case have all been determined adversely to respondent in appeal of same title, No. 8642, ante, p. 512, except one, which is, whether the defendant Grimmenstein is entitled to commissions on the amount of taxes collected by him as marshal of Redwood City, and by virtue of the office of marshal-tax-collector of said city during the fiscal year 1881-82. We are of opinion that he is not.

He held but one.office, that of marshal, and by virtue of holding that office he became tax collector. By section 19 of the act of March 30, 1874 (see Stats. 1873-74, p. 957), the marshal is allowed a salary of two hundred dollars per year, payable out of the general fund. By section 13 of the same act (seep. 954), it is provided that “the marshal shall be ex officio tax collector.”

We are of opinion that it was the intention of the legislature that the marshal should receive in compensation for the discharge of all duties devolved upon him by law, including that of collecting the taxes, the sum of two hundred dollars, and nothing more. Nor do we perceive that this is changed by the fact that he is made ex officio tax collector, and invested by the act (sec. 13, p. 954) “ with the same power and authority conferred on tax collectors of state and county taxes, and shall be governed by the laws of this state now or hereafter in force, except in so far as his duties shall be regulated or modified by ordinance.”

We understand these last provisions as referring only to his power and authority, and the exercise thereof in the discharge of his duties, and to have no reference to the compensation he is to receive. This is controlled by section 19 of the act, which, in our judgment, fixes his compensation for all services he may render. (See New Orleans v. Finnerty, 'FI La. Ann. 681; 21 Am. Rep. 569.)

It follows from the foregoing that the judgment and order must be reversed, and the cause remanded, with directions to enter judgment for the plaintiff for the sum of $547.88, and costs of suits.

Ordered accordingly.

Myrick, J., and Sharpstein, J., concurred.