Lehmer

The facts presented by the record herein are identical with those involved in the ease of City of Corona v. Merriam et al., ante, p. 231, [ 128 Pac. 769 ], an opinion which was filed in this court October 25, 1912,

In each case the action was one prosecuted by the city against its treasurer to recover from him and his sureties moneys retained by him and claimed as compensation for ser-, vices as such city treasurer. In the Corona case the claim of the treasurer was based upon an ordinance providing that, in addition to a salary of fifteen dollars per month, he should receive “one per centum on all moneys received and paid out by him as treasurer.” In the ease at bar the claim of the treasurer, in the absence of an ordinance fixing his compensation, is based upon section 876 of the Municipal Corporation Act, (Henning’s General Laws, p. 907) which provides that he “shall be allowed one per centum on all moneys received and paid by him as such treasurer.” It thus appears that, except in the one case the compensation is fixed by ordinance, while in the other it is fixed by statute, the provisions are identical. In each case the treasurer insisted that by virtue of the provisions…