which, by the widest conjecture, can be construed as expressly forbidding the person upon whom the taxes are cast from shifting the same by contract or by any other lawful means."

The court then decides that, conceding (not determining) that the primary duty to pay the tax is cast upon the transportation company, it is a burden which may be shifted, and that a rate-charge otherwise not unreasonable will not as matter of law be held to be unreasonable when increased by the amount of the war-revenue tax; for so to hold would be to declare, against the language of the law, that the burden may not be shifted, and, further, it would be, in effect, but to hold that the act of Congress by the mere fact of imposing a stamp tax forbids all attempts to shift it, and, consequently, that the carrier is deprived by the law of the right to fix rates, even though the limit of reasonable rates be not transcended.

With this exposition of the law there can be no cavil, but it is to be remembered that the state of facts to which it applies is one where the express company's regular and reasonable rate, exacted of each and every shipper, includes the amount of the war tax, while in the case at bar it is admitted that the regular rate and charge of the company was tendered and refused. The supreme court of the United States found it unnecessary to decide, and therefore did not decide, whether primarily the duty to pay the tax is cast upon the carrier. Throughout its discussion it conceded that such was the law. If a decision upon this point had been necessary, we entertain no doubt that but one conclusion could have been reached, that this duty is primarily upon the carrier. The language of the act seems to foreclose any controversy upon the matter: "There shall be levied, collected, and paid, for and in respect of . . . documents . . . by any person or persons or party who shall make, sign, or issue the same, or for whose use or benefit the same shall be made, . . . the several taxes," etc. (War Revenue Act, sec. 6.) "It shall be the duty of every... express company . . . to issue to the shipper... a bill of lading, . . . and there shall be duly attached . . . to each bill a stamp of the value of one cent." (War Revenue Act, sec. 25.)

In the Michigan case the express company shifted the burden by a reasonable change in its rate. In the present case, the question before the court may thus be put: May

an express company, to which has admittedly been tendered its regular charge for the transportation of a package, refuse to accept and transport that package upon its arbitrary demand that something more than the regular charge shall be paid? Here it is true that the exaction is small, amounting to only one cent, but, if the principle is good, it would apply equally well if the amount were large. Being an arbitrary demand of the company,—that is to say, a demand which it could waive at pleasure,-it would mean, if the principle contended for by appellant be upheld, that one shipper might receive the services of the express company upon payment of the regular charge, while others for the same service would be compelled to pay varying sums, arbitrarily exacted, in addition to the regular charge. So stated, and we think the statement a fair one,-it will not need discussion to show that the principle is erroneous, and that this may not be done. Each and every shipper is entitled to the services of the company upon the payment of the regular charge for the same service.

[S. F. No. 2506. In Bank.-February 18, 1902.]

In the Matter of the Controversy without Action between WASHINGTON DODGE, Assessor of the City and County of San Francisco, Respondent, and THE CITY AND COUNTY OF SAN FRANCISCO, Appellant.

POLL-TAXES COMPENSATION OF ASSESSOR OF SAN FRANCISCO-SALARY -PERCENTAGE NOT ALLOWED.-The assessor of the city and county of San Francisco is only entitled to receive the salary fixed by the charter of the city and county, which is therein declared to be "in full compensation for all his services," and he is not entitled to receive to his own use the percentage on poll-taxes fixed by section 3852 of the Political Code. [Beatty, C. J., dissenting.]

ID. CONSTITUTIONAL LAW-COMPENSATION PROPERLY FIXED BY CHARTER. Under section 8% of article XI of the constitution, the city and county of San Francisco was authorized to fix the compensation of county officers, and to provide for the number of deputies that each shall have, and for the compensation payable to each of the deputies.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Franklin K. Lane, City Attorney, for Appellant.
Gavin McNab, for Respondent.

VAN DYKE, J.-The controversy in this case was submitted to the court below without action, under sections 1138, 1139, and 1140 of the Code of Civil Procedure. From the agreed statement of the case, it appears that between the first Mondays in March and July, 1900, said Dodge, as assessor of the city and county of San Francisco, collected and paid into the treasury of said city and county, on account of poll-taxes, the total sum of $93,872, without any deductions on account of percentage for the collection of the same, but that said Dodge, as assessor, claims the sum of $14,080.80, being fifteen per cent of the entire amount of poll-tax so collected, for and on account of fees and percentage; that he has demanded of the treasurer of said city and county that he pay over the said sum, but that the said treasurer refused, and still refuses, to do so. The agreed statement further shows: "That said sum of $93,872 so collected by said Dodge, as assessor as aforesaid, and paid into the treasury of the city and county of San Francisco, was so collected by him and his deputies, clerks, and assistants without any cost or expense to said Dodge or his said deputies, clerks, or assistants whatsoever; that said Dodge, as assessor of the city and county of San Francisco, receives the sum of $4,000 per annum as and for salary and compensation for services rendered by him in his official capacity, which said sum is payable monthly out of the general fund of the treasury of the city and county of San Francisco, and each and all of his deputies, clerks, and assistants receive, and received during all the times mentioned, certain fixed salaries and compensations, payable and paid out of the said general fund."

Upon this agreed statement, the court below rendered judgment in favor of the assessor, from which judgment the city appeals. The sole question in controversy is whether the assessor of the city and county of San Francisco is en

CXXXV. CAL.-33

titled to retain the commissions allowed for the collection of poll-taxes, under section 3862 of the Political Code. After directing, in the preceding sections, how, when, and by whom the poll-taxes are collected, section 3862 provides: "The assessor for services rendered in the collection of poll-taxes shall receive the sum of fifteen per cent; and the collector for services rendered in the collection of poll-taxes on the delinquent list, including the publication, shall receive the sum of twenty-five per cent on all delinquent poll-taxes collected by him." This section has remained the same since the last amendement of 1877-1878.

In the earlier history of the state it seems to have been the policy of the law to compensate county and city officials mostly or entirely by the fees collected for the work performed by such officials. In consequence of abuses growing out of this fee system, a change in the mode of compensating public officers is indicated in the constitution adopted in 1878-1879. The compensation of public officials, city and county, at present is mostly by way of a fixed salary, in lieu of fees. In some cases, however, county officials are still allowed to retain certain fees. It is enjoined upon the legislature by the constitution to regulate the compensation of officers in proportion to duties, and for this purpose the counties are to be classified by population, and "it shall provide for the strict accountability of county and township officers for all fees that may be collected by them, and for all public and municipal moneys which may be paid to them, or officially come into their possession." (Art. XI, sec. 5.) By the County Government Act of 1897, the city and county of San Francisco falls within the first class. (Stats. 1897, sec. 157, p. 492.) By the next section (158, p. 496) it is provided: "In counties of this class the officers shall receive as compensation for the services required of them by law, or by virtue of their office, the salaries and fees fixed by law as compensation," and the County Government Act does not regulate the compensation of officers belonging to that class, that being left to the law organizing the body politic constituting the first class, to wit, the city and county of San Francisco. By section 811⁄2 of article XI of the constitution, adopted by way of amendment, November, 1896, it is declared: "Where a city and county government has been merged and consolidated into one municipal government, it shall also be compe

tent in any charter framed under said section 8 of of said article XI to provide for the manner in which, the times at which, and the terms for which the several county officers shall be elected or appointed, for their compensation, and for the number of deputies that each shall have, and for the compensation payable to each of such deputies."

The charter for the government of the consolidated city and county of San Francisco, adopted January 26, 1899, contains provisions for the election and terms of officers under the same, and fixes their compensation, in pursuance of section 81⁄2 of article XI of the constitution. It is provided in said charter, under the chapter with reference to the assessor, that, "He shall receive an annual salary of $4,000, which shall be in full compensation for all his services." Provision is made in the same chapter for the appointment of the necessary clerks and deputies to assist the assessor in the discharge of his duties, prescribing a fixed salary in each case to compensate them for their services. For the purpose, as it would appear, of removing all doubt, it is provided, under the article on miscellaneous subjects (sec. 34): "The salaries provided in this charter shall be in full compensation for all services rendered, and every officer shall pay all moneys coming into his hands as such officer, no matter from what source derived or received, into the treasury of the city and county within twenty-four hours after receipt of the same."

It is claimed, however, on the part of the respondent that the duty of the assessor, as provided in the charter, is merely to assess taxable property within the city and county, and that the collection of the poll-tax is not a part of his duty as such assessor. But the poll-tax is collected by him in his official capacity as assessor, and for all of his services as assessor he is fully compensated by way of a fixed salary, and is expressly required to pay "all moneys coming into his hands as such officer, no matter from what source derived or received, into the treasury of the city and county."

Under the provisions of the Political Code with reference to proceedings against delinquent purchasers of state lands, the register of the state land office is required to furnish to the district attorney of each county a list of delinquent purchasers of land within his county, and, under his direction, the district attorney is to commence suit for the foreclosure of