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for the county, in case he had prosecuted to judgment the actions against McGarvey and Hartnell. He could have recovered nothing unless the commissions sued for were illegally retained or paid to the tax collectors named. There is no dispute here as to the amounts retained by the two tax collectors. And it must be conceded that if the act of March 16, 1872 (Stats. 1871-72, p. 419), fixed the compensation of the tax collector when McGarvey and Hartnell were in office, each of them was entitled to retain or to receive the sum by each retained. The act of March 1, 1872 (Stats. 1871-72, p. 178), provided that the tax collector of Monterey should receive for collections of state and county taxes four per cent on the first ten thousand dollars, two per cent on all amounts over ten thousand dollars and less than twenty thousand dollars, and one and one half per cent on all moneys over twenty thousand dollars. By the act of March 16, 1872, it was enacted that the sheriff of Monterey should receive six per cent on the first ten thousand dollars collected for state and county taxes, four per cent on all over ten thousand dollars and less than twenty thousand dollars, and two per cent on any amounts more than twenty thousand dollars. The last act repealed all acts in conflict there with. When the acts mentioned were passed, the sheriff of Monterey County was ea officio the tax collector. Subsequently, and before the incumbency of McGarvey or Hartnell, the offices were made separate. It was urged by appellant that the percentages to be received by McGarvey and Hartnell, as tax collectors, were determined by the act of March 1, 1872. The contention is based on the proposition that in the act of March 16, 1872, the “sheriff” is named as the recipient of the percentages. But the sheriff was the tax collector.
The offices of sheriff and tax collector, though held by the same person, were separate and distinct offices. (People v. Ross, 38 Cal. 76; People v. Kelsey, 34 Cal. 470; Lathrop v. Brittain, 30 Cal. 680.) The act of March 16th fixed the percentages to be allowed the tax collector for collecting the taxes, fixed them no less because it called the tax collector “sheriff.” The title of an act does not control the plain meaning of the body of the act, a statute must he construed with reference to the objects to be accomplished by it. A thing clearly within the intention of a statute is within the statute. (Pierpont v. Crouch, 10 Cal. 315; Emery v. Reed, 65 Cal. 351; Burr v. Dana, 22 Cal. 20; Kinsey v. Kellogg, 65 Cal. 114, 115.) Judgment affirmed.
PATERSON, J., and TEMPLE, J., concurred.
[No. 9886. Department Two.—May 10, 1888.]
ET AL., APPELLANTs.
LESSOR AND LESSEE-SUCCESSIVE LEASEs—Coven ANT BY LESSEE TO REstore ALTERATIONS.—A lessee of a building during the term made certain alterations in the building, with the consent of the lessor. Prior to the expiration of the term, the parties entered into a new lease, to take effect upon the expiration of the former. This lease contained a provision to the effect that any alterations or changes made in the property by the lessees should be replaced, and the property left in its original condition. At the expiration of the second lease, the parties entered into a third, which contained a similar provision. IIeld. that upon the expiration of the third lease the lessee was obliged to restore the premises to the original condition in which they were while holding under the first lease.
APPEAL from a judgment of the Superior Court of the
city and county of San Francisco, and from an order refusing a new trial.
The facts are stated in the opinion of the court.
Naplotaly, Freidenrich & Ackerman, for Appellants.
The occupation by the lessees under the last lease was a surrender of the premises unter the former leases, and extinguished all obligations arising under the former leases. (Marks v. Ryan, 63 Cal. 107; Abell v. Williams, 3 Daly, 17; McDonnell v. Pope, 9 Hare, 705; Livingston v. Potts, 16 Johns. 28; Sperry v. Miller, 8 N. Y. 336; McKenzie v. Farrell, 4 Bosw. 192; Shepard v. Spaulding, 4 Met, 416; Merritt v. Judd, 14 Cal. 69; Hill v. Beally, 61 Cal. 292; Kutter v. Smith, 2 Wall. 491; Watriss v. National Bank, 124 Mass. 571.)
John H. Dickinson, for Respondent.
SHARPSTEIN, J.-The appellants were lessees of the respondent, under a lease which contained a stipulation that they should not make any alteration in the premises without the consent of the lessor. During the continuance of the lease, the lessor gave the lessees permission to make some alterations on condition that the lessees, upon leaving the premises, would restore them to their original condition. Pursuant to said permission, the lessees did make such alterations as they had obtained permission to make upon the aforesaid condition. Defore the expiration of said lease, appellants procured another lease, to take effect on the expiration of the former. The second lease contained the following clause: “And any alteration or changes made in the property by the parties of the second part shall be replaced, and the property left in its original condition.” At the expiration of the last-mentioned lease another was executed between the parties, containing the clause last above quoted. Appellants continued to occupy the premises until the expiration of the last-mentioned lease, and for one month thereafter, when they abandoned the premises without restoring them to the condition they were in at the date of the first lease, and refused so to restore
them, although requested by respondent to do so, whereupon
McFARLAND, J., and THORNTON, J., concurred.
[No. 12373. Department One.—May 12, 1888.]
M. P. HARBIN, APPELLANT, v. JACOB C. BURGHART ET AL. HENRY L. GOLD, RESPONDENT.
SCHOOL LAND–PURCHASE of FALSE STATEMENT IN APPLICATION.— Under section 3495 of the Political Code, an application for the purchase of school land which falsely states that there is no occupation of the land adverse to that of the applicant, is invalid, and confers no right of purchase on the applicant.
ID.—APPLICANT MUST BE ActUAL SETTLER.—Under section 3495 of the Political Code, as it existed in January, 1884, an applicant for the purchase of school land, who was not an actual settler thereon, could acquire no right of purchase.
ID.—Cox TENTs of AFFIDAVIT-TRIAL of Contest—FACTS ALLEGED MUst BE PRoved.—An applicant for the purchase of land from the state must set out in his affidavit the facts required by the statute to be stated therein, and unless such facts are proved at the trial of a contest to determine the right of purchase, no right accrues to the party alleging the same.
APPEAL from a judgment of the Superior Court of Tehama County, and from an order refusing a new trial.
The facts are stated in the opinion of the court.
PATERson, J.-This is an action brought to determine which of the parties has the right to purchase a portion of section 36, township 28 north, range 2 east, Mount Diablo meridian, school lands. All the defendants except Gold have been dismissed from the action. Gold's application to purchase was filed in the office of the surveyor-general, January 23, 1884, and is in proper form. Plaintiff filed his application to purchase in the same office on the 21st of March, 1884, and on the fol. lowing day filed with the surveyor-general a protest against the approval of Gold's application. Thereupon the surveyor-general certified the contest to the superior court of Tehama County.