The herald., 1894-03-07
SUPERVISORS HAD NO POWER.
Judge Van Dyke Decides the
License Tax Collector Case.
Only the Legislature Has Authority
to Create the Office.
BIT. HodEmsn's Appointment Declared
Void and Auditor I.Opsz Restrained
From Delivering His warrant.
What May Be Done.

OF the superior court yesterday dled an
opinion in a case, the decision OF which
has been awaited with much interest.
1t wasthe case TO teat the authority Of
the board OF supervisors to appoint a
license tax collector. and Judge Van
Dyke holds that the board had no such
authority.
The complaint stated that February
Sd, Last, e. q: Hcdgman presented his
claim against the county TO this board OF
supervisors for salary 20 license tax COL
lector for the month OF January In the
sum OF $l10 that on the 9th the board
allowed 1t and ordered the defendant,
County Auditor F. L. Lopez, to draw his
warrant for the amount; that in pursu-
ance OF the order the warrant was
drawn on County Treasurer Fleming,
who Was about to deliver IL to Hodgman
unless restrained.
The answer admitted the allegations,
and as defense set up that In January.
1898. the board OF supervisors appointed
Hodgman license tax collector for the
county, fixing his compensation at S1lO
per month; that he gave bond Tor
SIC, 1000 and entered upon his duties, and
is still collecting the license tax OF the
county.
To this anewer demurrer was filed,
claiming that the facts stated in the
answer do not constitute defense to
the cause OF action stated in the COM
plant.
1t is this demurrer that Judge Van
Dyke sustains and grants the restraining
order preventing the auditor from de-
livering the warrant to Mr.. Hodgman.
In the course of tho opinion Of the
court. which is quite long, he says that
upon the pleadings and stipulated facts
the questions presented were, first,
whether Hodgman is county officer;
secondly, whether the board Of super
visors had power to appoint.
''As to the fret question" says Judge
Van Dyke, there cannot be much
doubt. The ordinance in question calls
1t an Office. He is appointed to hold
Office and before entering upon the
duties of said Office shall take and sub
scribe to the constitutional oath of
Office and is to execute bond to the
county conditioned for the faithful dis
charge OF said Office"
The court holds that the position OF
the supervisors that the license tax col
lector in this case is mere agent OF the
board is entirely untenable.
A general discussion is then ntered
into by the court of the powers and du-
ties OF the board OF supervisors and the
powers OF the Legislature. Several cases
are cited in which this question was up
for confederation, and the court at
length uses this language:
in the several county government
acts the legislature has conferred upon
the board OF supervisors the power
to collect a license within the
county. In the county government act
OF 1891, statutes of 1891, page 295,
among the powers conferred upon the
board OF supervisors 10 the following
To license for purposes of regulation
and revenue all and every kind OF busi-
ness not prohibited by law and trans
acted and carried on in such counties,
and all shows, exhibitions and lawful
Games carried on therein; to fix the
rates Of license tax upon the same and
to provide for the collection of the same
by suit or otherwise 1t is claimed ON
behalf OF the defendants that this
power to collect the license by suit or
otherwise authorizes the board OF
supervisors to appoint an agent or
collector of licenses. But il this agent
or collector OF licenses be an officer, as
he is shown to be in this case, then we
run against section 5, article IL, OF the
constitution, which confers upon the
Legislature, as already seen, the sole
power to provide for the election or a D.
pointment OF all officers OF county that
public convenience may require, as we'll
as to prescribe their duties and compen.
sation, and 1t has been repeatedly held
that this power conferred upon the leg
islature by the constitution cannot be
delegated to the supervisors"
The court says in addition that q
license tax collector is an officer. He
exercises public duty and the board
OF supervisors have no more power to
create such an Office upon their own
views OF the public necessity or con-
venience than they would have to cre-
ate any other kind of Office deemed by
them necessary or convenient for the
transaction OF the public business. The
duty OF providing for this officer is
vested exclusively in the legislature OF
the state, and can be exercised by no
other body; and the legislature cannot
divest itself OF this duty by any deleRs-
tion of the power.
In conclusion the court says: "The
Legislature no doubt considered that one
tax collector for the county was euffi-
cient to collect all manner of public
revenue on behalf OF the county, whether
in the nature Of license taxes or taxes
upon property. At any rate no separate
officer for the collection Of license taxes
has been created by the legislature, and
that body is alone to determine whether
the public convenience may require q
separate county officer for such pur-
pose.
''It results. therefore, that the ap-
poiutmeut OF Mr.. Hodgmar as license
tax collector for the county WAS without
authority on the part OF the supervisors
and ia void, and il is the duty of the
court go to declare. whatever temporary
inconvenience may rssult therefrom."
WHAT MAY BE DOM.
Alter the decision = HERALo reporter
saw Supervisor Francisco and asked him
what the board would do about the mat
ter. He said he could not say positively.
but thought 1t would result in the ap-
pointment Of MIR. Hodgman as deputy
county clerk and the performance of his
duties in that way. He said that the
collection OF the license tax is a peculiar
duty. and requires the closest kind OF
watching; that the county ia now deriv-
ing hne revenue from it by keeping the
collections up close. and the board would
n