The record-union., 1899-01-07

hear the testimony concerning the fact,
for the purpose Of determining whether
or not reasonable cause exists for the
contention that the title to the Office is
in doubt The testimony in this case
shows, beyond dispute, that at the gen
eral election held in 1898, the petitioner,
B. N. Bugbey, received the highest
number Of votes for the Office Of Tax
Collector for the county of Sacramento.
and thereafter certificate Of election
was duly issued to him for that office;
that he filed bond as required by law.
which was approved by the court and
recorded; and that he took the usual
oath of office. The testimony also shows
that the respondent, F. T. Johnson, at
the said election received the highest
number of votes for the office Of Sher-
if Of the said county Of Sacramento,
and also complied with all the require
ments of the law in reference to filing
bonds and taking the oath of Office.
The petitioner, at the time provided
by law, when the term Of his office COM
menced, and after his qualification as
above found, demanded of the respond
ent the possession Of the books and pa
pers belonging to the office Of Tax Col
lector, but the respondent refused to
deliver them to him, since which time
petitioner and respondent have both
been endeavoring to conduct the bust
ness of said office, the respondent,
however, being in possession of Ill the
appurtenances Of said office.
The respondents principal contention
OF his right to discharge the duties of
the office Of Tax Collector, are upon the
mr. e
March, 1874, the Legislature of the
State of California Statutes of '73 4,
page 9O9) passed an Act consolidating
the offices of Sheriff and Tax Collector
in the County of Sacramento, provid-
ing for the duties of the incumbent of
that office and for his salary, ETC.; and
that said Act of the Legislature has not
been repealed.
The court is of the opinion, however,
that said Act was repealed by the Gen
eral County Government Act, passed by
the Legislature in 1888 Statutes of Cal
ifornia, 1888, page $500. The County
Government Act was adopted by the
Legislature in pursuance of a manda-
tory provision Of the Constitution CT
the State for the adoption Of a uniform
system of county government. Section
81 of that Act reads as follows:
Section 81. The officers of a coun-
ty are: A Sheriff, County Clerk, an
Auditor, Recorder, Tax Collector, a
District Attorney, an Assessor, a Treas
urer, a Superintendent of Schools, q
Public Administrator, a Coroner, a Sur
veyor, the members of the Board of
Supervisors, and such other officers as
may be provided by law; provided. that
IN a county where the Board of Super
visors, by proper ordinance, may so
elect, the duties of certain of the above
named officers are hereby consolidated
as follows: The Sheriff and Tax Col
lector; Auditor and Recorder; County
Clerk, Auditor and Recorder; County
Clerk and Recorder; County Clerk and
Auditor; Treasurer and Tax Collector;
Public Administrator and Coroner"
The concluding sentence of said Act
of 1883 Statutes 1883, page 1863 rea Is
as follows: "Al1 Acts and parts of
Acts inconsistent with this are hereby
repealed
In other words, the court is of the
opinion that an Act which creates the
office OF Sheriff and provides that the
incumbent of that office shall be ex-
ofnc1o Tax Collector, and further pro-
vides the duties required to be per-
formed by him, and the salary which he
shall receive therefor, is in conflict with
a subsequent Act of the Legislature
which provides for two separate and
distinct offices, one that Of Sheriff. and
the other that of Tax Collector, and
also provides for the term which the in
cumbent in each of those offices shall
hold the same, and the salary which he
shall receive.
In reaching this conclusion, the
court has not been unmindful of the de-
cisions cited by counsel for the re-
spondent, wherein it is uniformly held
that the repeal Of an Act of the Legis-
1ature by implication is not favored in
law, and that it is the duty of the
court to- uphold both statutes, if it may
consistently do so. These rules have
been carefully considered; yet the court
finds it impossible to reconcile the pro-
visions of the two statutes in such a
manner as to give full force and effect
to both, and has therefore reached the
conclusion above stated-that the
statute of 1874 was repealed by the sub
seQuent Act of the Legislature passed
in 1888
No testimony was offered at this
hearing, concerning any action by the
Board of Supervisors taken with a view
to the cons olidation of the offices Of
Sheriff and Tax Collector in Sacra-
mento County. In the argument of the
case, however, it appeared that the
hoard of Supervisors of Sacramento
County, in 1888, endeavored to CONSOLE
date said offices by resolution adopted
by the board. An examination of Sec
ton 81 of the County Government Act
of 1888, which section is quoted in full
in this opinion, discloses that the only
mode for consolidating offices provided
under the statute, is by ordinance reg
ularly passed by the Board Of Supervis-
ors. That is to say the respondent does
not rely upon the attempted consoli-
dation Of the two offices made by the
Board of Supervisors in 1888.
Counsel for respondent has insisted,
with much force, that the petitioner is
not such IAN actual incumbent of the
office of Tax Collector as is required by
the provisions of Section 1915 of the Po-
litical Code. showing that he is entitled
to the relief provided in that section.
These provisions of the Political Code
have been under review by the Supreme
Court of this State only once, and then
in the case of Hull VS.. Superior Court
Of Shasta County, reported in SD Cal,
at page ia. A careful examination of
the decision of the Supreme Court in
that case, and also of the record of the
case found in the Office of the Clerk of
the Supreme Court, convinces me that
the facts in that case We're practically
on all-fours with the facts in the case
at bar. In the Shasta County case one