{ "id": 4676879, "name": "FRANK A. HUBBELL, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS, Bernalillo County, Appellee", "name_abbreviation": "Hubbell v. Board of County Commissioners", "decision_date": "1906-06-29", "docket_number": "No. 1114", "first_page": "546", "last_page": "550", "citations": [ { "type": "official", "cite": "13 N.M. 546" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "17 Iowa, 457", "category": "reporters:state", "reporter": "Iowa", "opinion_index": -1 }, { "cite": "75 Iowa, 359", "category": "reporters:state", "reporter": "Iowa", "opinion_index": -1 }, { "cite": "23 Iowa,, 414", "category": "reporters:state", "reporter": "Iowa", "opinion_index": -1 }, { "cite": "35 Neb. 3", "category": "reporters:state", "reporter": "Neb.", "opinion_index": -1 }, { "cite": "48 Mo. 331", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8851598 ], "opinion_index": -1, "case_paths": [ "/mo/48/0331-01" ] }, { "cite": "75 la. 361", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2061072 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/iowa/75/0361-01" ] }, { "cite": "39 N. W. 641", "category": "reporters:state_regional", "reporter": "N.W.", "weight": 2, "opinion_index": -1 }, { "cite": "18 Pac. 309", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "40 Fed. 818", "category": "reporters:federal", "reporter": "F.", "opinion_index": -1 }, { "cite": "3 Story, 87", "category": "reporters:federal", "reporter": "Story", "case_ids": [ 6129809 ], "opinion_index": -1, "case_paths": [ "/f-cas/27/0001-01" ] }, { "cite": "22 How. 299", "category": "reporters:scotus_early", "reporter": "How.", "case_ids": [ 1137350 ], "opinion_index": -1, "case_paths": [ "/us/63/0299-01" ] }, { "cite": "75 Ia. 356", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2061121 ], "opinion_index": 0, "case_paths": [ "/iowa/75/0356-01" ] }, { "cite": "23 Ia. 410", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 344517 ], "opinion_index": 0, "case_paths": [ "/iowa/23/0410-01" ] }, { "cite": "35 Neb. 381", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 4432700 ], "opinion_index": 0, "case_paths": [ "/neb/35/0381-01" ] } ], "analysis": { "cardinality": 525, "char_count": 9579, "ocr_confidence": 0.456, "pagerank": { "raw": 1.441894316436871e-07, "percentile": 0.6533041115524496 }, "sha256": "f5d57686170616fe5f1d6be8f41e9218fea8928b0a4e6e7614f8ccb7fc2b7ff1", "simhash": "1:2e6b08695585ef71", "word_count": 1632 }, "last_updated": "2023-07-14T14:31:03.422768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "William J. Mil\u00eds, C. J., John R. McFie, A. J., Frank W. Parker, A. J., Wm. H. Pope, A. J, concur", "Abbott A. J. having heard the case below, did not participate." ], "parties": [ "FRANK A. HUBBELL, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS, Bernalillo County, Appellee." ], "opinions": [ { "text": "OPINION .OF THE COURT.\nMANN, J.\n\u2014 The question raised in this case is whether the county treasurers and collectors of New Mexico were entitled to receive a commission of four per .cent upon the monies derived from gaming and liquor, .licenses, from March 9, 1901, up to the passage and taking effect of the act of 1905.\nChapter 60 of the Session Laws of 1897, (Sec. .7) provided that the treasurers of the several counties of the Territory- should be ex-officio collectors of their respective counties and have and exercise all the powers and duties then provided by law, for county collectors, provided that they., should give bond as such collectors and \u2018shall receive as full compensation for all services four per cent-of the amount of taxes and licenses collected-by them/, the act to take effect January 1st, 1899.\nThe act of March 9, 1901, (Sec.- 6) provided that-\u201cthe. sheriffs of .the several counties shall hereafter be the collectors \u25a0 of all'gaming and liquor licenses, and shall be entitled to retain out of the proceeds of such licenses so collected as compensation for their services a commission of-four'per cent/ \u25a0 This act took effect from and after its' passage.' ' '\nThe first act referred to (October, 1897,) was a com-' prehehsive act, dividing the various counties' into! classes, providing the duties of' the various officers and the' echnpehs\u2019ation which they' should receive. '\nBy. Sec. 7, the office of collector was \u2019transferred \u2018from the. sheriffs who had hitherto been the collectors\u2019'&'tlie treasurers .and provided that the treasurers should receive as full, compensation four per cent of all the \"taxes and licenses 'collected by them. ' ,' \u2019\"\nThe. act of 1901 was specially upon the subject of liquor and gaming licenses and the duties of the sheriffs in relation' thereto and it specifically took ffoni the treasurers the duty of collecting such licenses and' conferred that duty upont he sheriffs and provided for'their'compensation for the collection thereof.' ' ! ' '\nIt will bo borne in mind that the office of treasurer and the office of tax collector are entirely separate and distinct. 27 Am. & Eng. Enc. (2nd Ed. \u00ab765.)\nA tax collectqr is one whose duty it is to enforce the collection of taxes, the tax gatherer, the agent .of. the county to collect its dues. The treasurer oh the other hand is the custodian of the funds of the county after the3r are collected.\nThis distinction has always been recognized.' liy our legislature; the duties of the collector have sometimes been imposed upon one officer and sometimes upon another. '\nThe laws of Nebraska, in 1892, provided that' the county treasurers should be ex-officio collectors and,, the general law providing for their compensation provided that they should receive a certain per cent of all taxes collected by them, using the exact words of our statute. Some of the counties of the state were under township organization, each township having its collector whose duty it was to collect all taxes in his township and. turn the same over to the county \u25a0 treasurer, and upon .which the township collector received a commission. .\nIn Taylor v. Kearney County, 35 Neb. 381, the treasurer of Kearney county claimed his commission under the statute referred to upon money received from the township collectors but in refusing it the supreme court of Nebraska, speaking through Mr. Chief Justice Maxwell, says: \u201cThe words collect taxes as used in the statute, means to obtain payment of the same from the taxpayers. In most cases such payments will be made voluntarily, but the power to collect carries with it the authority to use force in the manner pointed out by the laws to obtain payment* * * * The securing of these taxes from the taxpayers, therefore, is the collection referred to in the statute.\u201d Taylor v. Kearney Co. (Supra.) See also McInery v. Read, 23 Ia. 410.\nIn Purdy v. Independence 75 Ia. 356, the court says: \u201cThe meaning of the word collect, as given by the lexicographers, is to gather, to assemble. When used with reference to the collection of money, it often- implies much m-ore than the mere act of receiving the money.\u201d '\nBy the act of 1901, it was the plain intention of the legislature to take from the county treasurer the collection of these licenses. He was shorn of any authority or right to demand or enforce their payment, and that authority was conferred on the sheriff, who was required to give bonds for its performance. The treasurer was thus relieved from all liability for such collection and such sums when collected were not \u2018collected by him\u2019 within the meaning of Sec. 7, Chapter 60, Laws of 1897, and he is therefore not entitled to four per cent thereof. There is no question here of repeal by implication, it is a mere question of definition of the term \u201ccollect\u201d as used in Chapter 60, Laws of 1897. The treasurer still received the four per cent of all taxes and licenses collected by him as ex-officio collector but that statute'cannot be construed as meaning received by him as treasurer.\nThere was no error in the action of the court below in rendering judgment against the appellant on the pleadings, and the judgment is therefore affirmed.\nWilliam J. Mil\u00eds, C. J., John R. McFie, A. J., Frank W. Parker, A. J., Wm. H. Pope, A. J, concur\nAbbott A. J. having heard the case below, did not participate.", "type": "majority", "author": "MANN, J." } ], "attorneys": [ "W. B. Childers, for appellant.", "F. W. Clancy, for appellees." ], "corrections": "", "head_matter": "[No. 1114,\nJune 29, 1906.]\nFRANK A. HUBBELL, Appellant, v. THE BOARD OF COUNTY COMMISSIONERS, Bernalillo County, Appellee.\nSYLLABUS.\nA county treasurer was not entitled to a commission upon monies collected for gaming and liquor licenses during the period intervening between the act of March 9, 1901, and the passage of Section 11, Chapter 60, Laws of 1905.\nAppeal from the district court of Bernalillo county, before Ira A. Abbott, Associate Justice.\nAffirmed.\nW. B. Childers, for appellant.\nIf the treasurer and ex-officio collector, the two offices being united by Chapter 60, Acts of 1897, was entitled to receive \u201cfor all services four per centum of the amount of taxes and licenses collected by him,\u201d was this repealed by the act of 1901, imposing upon the sheriff certain duties and authorizing him to charge four per centum upon such licenses, and making it his duty to pay the same over to the treasurer and ex-officio collector after the receipt thereof under said act. >\nThere certainly is no express repeal of the allowance of four per centum to the treasurer and ex-officio collector by the act of 1901. The question then arises, was there a repeal by implication.'\n\u201cThe intention to repeal, however, will not be presumed, nor the effect of repeal admitted, unless the inconsistency is unavoidable, and only to the extent of the repugnance.\u201d\n1 Lewis\u2019 Sutherland Stat. Con. p. 364.\nFor the application of this doctrine to cases of compensation of public officers, see\nUnited States v. Walker, 22 How. 299; See, 3 Roses\u2019 Notes, p. 943.\nWhere a statute providing compensation for an officer is capable of two constructions, it must be construed liberally in favor of compensating the officer who has rendered the services. It should never be presumed that the state expects or provides by statute that its officers are to render services gratuitously.\nIT. S. v. Morse, Fed. Cases No. 15820, Yol. 27, p. 2, and cases there cited; 3 Story, 87; McKinstry v. United States, 40 Fed. 818; Wood v. Cook, 31 111. 277; Kilgore v. People, 76 111. 548-553; People v. Wiltshers, 92 111. 260.\nUnder the statute, to collect is to obtain or receive the money from whatever source it may come, and\" the treasurer as much collects it when he takes it from the sheriff as when the latter collects it from the original payer of the license.\n7 Cyc. of Law and Procedure, p. 280; 6 A. & E. Ency. of Law (2nd Ed.) 206, and authorities there cited; People v. Eeis, 76 Calif. 279; 18 Pac. 309; Purdy v. Independence, 39 N. W. 641; 75 la. 361; Gable v. Elizabeth, 13 Yr. (N. J.) 79-80; Id. 39 N. W. 641.\nCollect is defined in Anderson\u2019s Dictionary \u201cto receive or obtain monejU\u2019\nMissouri v. Moeller, 48 Mo. 331.\nF. W. Clancy, for appellees.\nThe only statute- in force giving the treasurer any compensation is in Section 7 of Chapter 60 of the Session Laws of 1897 (Compiled Laws, p. 304), and is as follows :\n\u201cThe treasurers and ex-officio county collectors shall receive as full compensation for all services four per cent of the amount of taxes and licenses collected by them.\u201d\nAppellant\u2019s contention is, in substance, that any money received by the treasurer which is the product of a tax or a license, no matter how it comes to him or from whom he receives it, is collected by ffim within the meaning of this law, and that he is entitled to the percentage thereon.\nOur tax laws have never used the word \u201ccollect\u201d in any such sense, and the authorities are that in such laws \u201ccollect\u201d means much more than \u201creceive.\u201d\nTaylor v. .Kearney Co. 35 Neb. 3.81; Mcr-, Inerey v. Keed, 23 Iowa,, 414; Purdy v. Independence, 75 Iowa, 359-60; Pottawattomie v., Carroll, 17 Iowa, 457.\nSTATEMENT OF I