Placer County v. Astin

8 Cal. 303

Opinion

Terry, J., delivered the opinion of the Court—Burnett, J., concurring.

This was an action on an official bond, instituted to recover a certain sum collected by Astin, as sheriff and ex officio tax-collector of Placer county, and which he failed to pay over, to the county treasurer, as required by law. A jury being waived, the case was tried by the Court, who found that defendant, Astin, was duly elected and qualified as sheriff of Placer county. That the bond sued on was duly executed by the defendants. The Court also found the amount of taxes assessed, the amount collected by Astin, and that after deducting the sum paid into the treasury, and the per centage allowed to the collector, there yet remained in his hands, of the funds so collected as taxes, due the plaintiff, the sum of one thousand three hundred and ninety dollars, for which a judgment was rendered.

The appellant contends—

First, that the plaintiff has no legal capacity to sue.

This point is not tenable. The statute of April, 1854, gives to counties the right of prosecuting and defending all actions, in the same manner and with the same effect as individuals. See' Acts of 1854, p. 45; see also Price and Proctor v. Sacramento, July , Term, 1856; and Gilman v. Contra Costa County, ib.

The second point is, an objection to the complaint, which, not having been taken by demurrer, cannot be raised on appeal.

The other objection on which appellant seemed chiefly to rely, and to which Re addressed the greater part of his argument, is, that the Court of- Sessions had no power to levy taxes, or revenue, in any case; hence, there was no legal assessment of taxes for county purposes, and plaintiff is neither legally nor equitably entitled to money claimed in this action, which belongs to those persons from whom defendant, Astin, received it.

There is no doubt of the correctness of this proposition, but the defendant is not,,in a condition to avail himself of it; having collected the money as the agent, or trustee, of the plaintiff, he cannot deny the right of his principal to receive it.

Judgment affirmed, with costs.