Schwartz

This is an agreed case, submitted under the provisions of section 1138 of the Code of Civil Procedure. The case is properly entitled as above—though otherwise in the transcript. The defendant is the treasurer of the county of San Diego, and was such during the preceding term, commencing in January, 1899. He now has in his hands of the sum collected by him as collateral inheritance taxes under the act of March 23, 1893, (Stats. 1893, p. 193,) a balance of $601.96, for which he is sued, and to which, he claims, he is personally entitled, under section 20 of the act; which reads as follows: “The treasurer of each county shall be allowed to retain, on all taxes paid and accounted for by him each year, under this act, in addition to his salary or fees now allowed by law, five per centum on the first fifty thousand dollars so paid and accounted for by him, three per centum on the next fifty thousand dollars so paid and accounted for by him, and one per centum on all additional sums so paid and accounted for by him.”

The question submitted was whether the plaintiff is entitled to recover the money in question; and this, again, resolves itself into the question whether the provisions of…

I dissent. It would serve no useful purpose to here indulge in an extended discussion, or to do more than to state that, in my opinion, there has been no repeal or modification of the provision of the Collateral Inheritance Tax Law enacted March 23, 1893, by which the legislature provided that the county treasurer should receive and retain, in addition to the compensation provided by the County Government Act, certain commissions upon all amounts collected by him for the state, under the provisions of the Inheritance Tax Law.

The three cases cited in the majority opinion do not appear to me to be at all in point.

County of Kern v. Fay, 131 Cal. 547 , presented a question as to the right of the district attorney to retain for himself an attorney fee, collected as costs, in a certain class of actions, the alleged right being based on a section of the Political Code (sec. 3553) as enacted in 1872. It was very properly held therein that the effect of the subsequently adopted County Government Act system was to deprive the district attorney of any right to retain money under the provisions of the old section of the Political Code. The intention of the legislature to this effect was…