ID.-ACTION BY STATE TO RECOVER FOR FEES-STATUTE OF LIMITATIONS. A cause of action to recover for fees unlawfully retained by the commissioner accrued in favor of the state upon the expiration of his term of office, without any demand being made therefor, and under section 338, subdivision 1, of the Code of Civil Procedure, became barred by the statute of limitations after the lapse of three years. ID.-DEMAND BY CONTROLLER FOR ACCOUNTING.-A demand made by the controller on the commissioner, under section 437 of the Political Code, for an accounting for the fees collected by him, does not create a new cause of action in favor of the state.

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.

John J. Roche, and T. C. Van Ness, in pro. per., for Appellant.

Attorney-General Johnson, and Langhorne & Miller, for Respondent.

MCFARLAND, J.-The sections of the Political Code from 2949 to 2969 provide in detail for the examination of immigrants coming to this state by sea, to discover if any of them are afflicted with the disease of leprosy. The office of commissioner of immigration is created. Such commissioner is authorized to examine all vessels arriving at any port of the state, and to take charge of all persons found to have said disease and place them in a suitable lazaretto, or leper's quarter, to be provided by the board of supervisors "whenever necessary for that purpose." That part of said sections which particularly affects the decision of the case at bar is contained in section 2955, and is as follows: "For his services in making such examination and inspection, the commissioner of immigration shall demand and collect from the master, owner, or consignee of such vessel the sum of seventy cents in United States gold or silver coin for each and every person so examined or inspected,

which sum, except four thousand dollars a year and expenses of office, shall, when required for such purpose, be paid by the commissioner into the state treasury, to be used in the maintenance, when necessary, of such lazarettos, or lepers' quarters, as shall be constructed under this law."

Defendant was commissioner of immigration from March 25, 1876, to January 20, 1880. During the early part of his term he paid some fees into the state treasury; but in 1878 he notified the offices of the attorney-general, state treasurer, and state controller, that upon examination of the law he had concluded that the fees belonged to him; that those already paid into the state treasury should be refunded to him; and that he would not pay to the state any more of such fees. After that he ceased to pay any of said fees into the state treasury; and nothing more was done about the matter until more than three years after he had gone out of office, when the controller made a demand upon him for the fees, and stated an account for his alleged indebtedness therefor, under section 437 of the Political Code, and on April 10, 1883, had this present action-in form an action of debt-instituted to recover them. Defendant answered, denying the indebtedness, and pleading the statute of limitations. The court found that the excess of fees received by defendant during his said term of office, over his salary and office expenses, was $2,382.87, for which sum, together with statutory damages, judgment was entered. It was not proven or found that any lepers' quarters were ever constructed or maintained, or that any money was "required for such purpose."

Appellant contends that, upon any view of the law, the judgment should not have been for a greater amount than $371.86; but we do not consider it necessary to examine the various points made under that contention.

That part of section 2955 of the Political Code above quoted is, no doubt, somewhat cloudy. It would be an

absurdity to hold it to mean, either that the commissioner was to have as his own all fees collected before the state required them to construct and maintain lepers' quarters, or that he should retain them indefinitely until the state should so want them (which might not be for a quarter of a century after the expiration of his term of office), and that then he or his heirs should pay them all over. The only rational construction is, that the intent of the legislature was that the commissioner should pay into the state treasury all the fees collected, less four thousand dollars a year and office expenses, which should be used by the state for the maintenance of lepers' quarters when required for that purpose. And this construction we take to have been established by the case of People v. Bunker, 70 Cal. 212.

Whether or not there was any general law requiring the appellant to pay over the fees collected by him monthly or at other stated times, he could have been compelled to do so at reasonable periods during his incumbency of the office. At all events "there can be no doubt that he was legally bound to pay them over upon the expiration of his term of office. In such a case no necessity for any demand existed. The party was in default by his own act, and a debtor" to the state for the amount due. (San Francisco v. Heynemann, 71 Cal. 153.) A cause of action, therefore, existed in favor of the people against appellant at the time of the expiration of his term of office; and this action, having been commenced more than three years thereafter, is barred under subdivision 1 of section 338 of the Code of Civil Procedure. The demand made by the controller did not create any new cause of action. (People v. Melone, 73 Cal. 574.) The statute of limitations is as applicable to actions like the one at bar brought by the state as to those brought by private persons; and public officers and their bondsmen cannot be harrassed by suits brought after the statutory periods of limitation have expired.

(It may be noted that section 2969 of the Political Code, which now provides that the commissioner shall make payments of fees into the state treasury monthly, was not passed until March, 1883.)

The judgment and order denying a new trial are reversed, and the court below is directed to give judgment for defendant.

THORNTON, J., and SHARPSTEIN, J., concurred.

[No. 9879. Department Two.-May 12, 1888.]

P. DENGLER, ET AL., APPELLANTS, v. EDWARD MICHELSSEN ET AL., RESPONDENTS.

LANDLORD AND TENANT-ASSIGNEE OF LESSEE REASSIGNMENT TO LESSEE. An assignee of a leasehold estate, by reassigning to the original lessee, discharges himself from liability to the lessor for rent subsequently accruing.

ID.-FAILURE OF LESSOR TO DELIVER POSSESSION-ABANDONMENT BY LESSEE. The failure of the lessor to deliver possession of the leased premises to the lessee justifies the latter in abandoning the premises, and discharges him from the liability to pay rent.

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.

L. H. Van Schaick, and Justin Jacobs, for Appellants.

O'Brien & Morrison, and Darwin & Murphy, for Respondents.

MCFARLAND, J.-This is an action to recover money averred to be due on a certain lease. Judgment went for defendants in the court below, and plaintiffs appealed.

The facts found by the court are substantially these: About August 31, 1878, plaintiffs leased (by written indenture) to one E. B. Burdick, a certain piece of land

and premises in San Francisco known as lot 31 in block 58, for the term of one year from September 1, 1878. Burdick was to pay as rent $110 per month, payable every six months in advance. Defendants furnished to Burdick $660, with which Burdick at the time of the execution of the lease paid the rent to plaintiffs for the first six months; and on September 3, 1878, Burdick made and delivered to defendants an instrument in writing as follows: "In consideration of fifty dollars received from Michelssen, Brown & Co., I hereby transfer lease from P. Dengler and Frank Breiling of lote 31, block 58, bounded by.. Further, said Michelssen, Brown & Co. agree to lease to me the above-mentioned property, or as much of said building as the undersigned requires for the manufacture of artificial butter." But other parties were in possession of the leased premises as tenants of plaintiffs, from whom plaintiffs had received rents to at least September 20, 1878; and plaintiffs failed and refused to deliver possession of said premises to either Burdick or defendants, during the first twenty days of September, although requested so to do, and failed and refused to put defendants into possession for two months after said September 1st. Whereupon defendants declined to have anything further to do with said premises, and so notified plaintiffs; and within the first six months for which the rent had been paid they reassigned said lease to said Burdick. Neither Burdick nor defendants were ever in possession; and defendants have lost the $660 which they advanced to Burdick for the first six months' rent. Immediately after the expiration of the first six months, on the day of March, 1879, plaintiffs commenced an action against Burdick for the amount of rent named in the lease for the next six months; but in January, 1882, they, for some reason, dismissed that action, and commenced this present action against defendants for said amount. And the evidence being substantially