The People v. Lytle

• Decision Date: 01 August 1867
• Citation: 1 Idaho 143
• Parties: The People ex rel. A. C. Springer v. John A. Lytle.
• Court: Idaho Supreme Court

1 Idaho 143

The People ex rel. A. C. Springer v. John A. Lytle.

Supreme Court of Idaho

August 1, 1867

STATUTES-REPEAL.-A general statute without negative words will not repeal the particular provisions of a former one, unless the two acts are irreconcilably inconsistent.

IDEM.-A statute clearly repugnant to a prior one necessarily repeals the former, although it does not do so in terms.

IDEM.-Though a subsequent statute be not repugnant in all its provisions to the prior one, yet if the latter was clearly intended to provide the only rule that should govern in the case provided for, it repeals the original act.

IDEM.-The act of January 7, 1867, creating the office of tax collector for the county of Owyhee, is repealed by the act passed at the same session, January 11th, amending the revenue law.

ADJOURNED into this court from the Third Judicial District, Owyhee County. An information in the nature of a quo warranto on the relation of the sheriff of Owyhee county against the defendant, Lytle, for usurpation of the office of tax col-

lector of that county. At the June term, 1867, of the district court for that county, the parties by stipulation submitted certain issues in controversy, which were certified into this court by the presiding judge, for decision. The following are the material portions of said stipulation:

1. That heretofore and on the eighteenth day of February, 1867, said relator, Amos C. Springer, was appointed tax collector of said county by the governor of said territory.

2. That the said relator, A. C. Springer, was, at the last general election in said Idaho territory, duly and lawfully elected to the office of sheriff of said county of Owyhee, and ex-officio tax collector thereof, for the term of two years from the first Monday of January, 1867; and that he has in every manner and respect qualified as such sheriff as required by law, and has ever since the day aforesaid been de facto and de jure the sheriff of said county, and has tendered to the proper officers his official bond in manner required by law, and has at all times been ready to perform the duties of tax collector of said county of Owyhee ex-officio as such sheriff.

3. That on the twenty-third day of February, 1867, in pursuance of an act of the legislature of said territory, entitled "An act to create the office of tax collector for the collection of revenue in and for the county of Owyhee," passed January 7, 1867, said defendant was appointed by the board of county commissioners of said county tax collector, and on the first day of March duly qualified as such and entered upon the duties of said office.

The questions submitted are as follows: 1. Is the defendant, John A. Lytle, entitled to said office of tax collector of said county of Owyhee? or, 2. Is said relator, Springer, entitled to said office of tax collector and to exercise the duties thereof? The other facts appear in the opinion of the court.

E. J Curtis, District Attorney, L. P. Higbee, and McQuade &amp McQuade, for the Relator.

The act creating the office of tax collector for Owyhee county passed January 7, 1867, was repealed by act of January 11,

1867. (4 Ses. L. 43, 116.) The effect of the passage of a subsequent act is to repeal all former acts as far as they conflict. (Dobbins v. Sups. Yuba Co., 5 Cal. 415; Pierpont v. Crouch, 10 Cal. 316; Scofield v. White, 7 Cal. 401; Crosby v. Patch, 18 Cal. 441, 442; People v. Grippen, 20 Cal. 678.) By act of January 11 (4 Ses. L. 43), the law was restored as it existed prior to the passage of the act of January 7. (4 Ses. L. 116.) Martin & Johnson and Ganahl & Huggan, for Defendant.

The office of sheriff and that of tax collector are public offices. (People v. Edwards, 9 Cal. 292.) In this country the incumbent has no property in his office; and when the relator accepted the office of sheriff there was no "principle known or recognized under our institutions and laws upon which he can claim to restrict the power of the legislature over the duties a d fees of the office." (Conner v. The Mayor and Council of N. Y., 5 N.Y. 300; People v Warner, 7 Hill, 81; Warner v. People, 2 Denio, 272, 43 Am. Dec. 740.) The acceptance of a public office does not create a contract respecting property. (Conner v. City of New York, 5 N.Y. 295, 296, 299.) The act to create the office of tax collector for the county of Owyhee is a special act, and relates only to that particular office; and the object of this act is in no way affected by the general revenue act of the territory, or its amendments. The office of tax collector of Owyhee county was the sole object of the former act, while the whole subject of territorial and county revenue is embraced in the latter; and as to its single object the former must control. (Dobbins v. Yuba County, 5 Cal. 414; People v. Wells, 11 Cal. 338, 339; Sedg. on Stat. and Const. L. 247, citing language of Lord Mansfield; Id. 123, 124.) The law does not favor repeals by implication. (Scofield v. White, 7 Cal. 401.)

CUMMINS, J.,

delivered the opinion of the court,

McBRIDE C. J., concurring.

On January 7, 1867, the legislative assembly passed a bill, notwithstanding the governor's objections to the same, creat-

ing the office of tax collector for the county of Owyhee. Prior to that time, the sheriffs in their respective counties except in that of Boise, were ex-officio tax collectors. The act above referred to was designed to take away these duties and erect them into a separate office. On the eleventh of the same month the revenue act was passed, in which the following provision is found, at the end of section 6: "Provided, further, That in all other cases of the collection of taxes the sheriff of the county shall be collector of all taxes except in the county of Boise, in which county the assessor shall be collector of all poll taxes, per capita and hospital taxes, and all taxes upon real and personal property." By the provisions of this section the assessor is the collector of all poll, per capita, and hospital taxes, and of personal property taxes in certain specified cases until the completion and return of his assessment, and in "all other cases" it is made the duty of the sheriff to perform this service, except in the single county of Boise. The first clause of section 27 of this act reads, that "all acts and parts of acts inconsistent herewith are hereby repealed." It will be observed that this act was passed four days after the passage of the act creating the office of tax...