On November 7, 1890, the board of supervisors passed an ordinance (No. 48) amending section 2 of a prior ordinance (No. 39) so as to make it read as follows:

"SEC. 2. A license shall be granted to any person of good moral character who is a proper person to be intrusted in the business to sell vinous, spirituous, distilled, malt, mixed, or other intoxicating liquors, at any specified place in this county, upon the petition of such person to the board of supervisors. Upon such petition being made by any applicant the board shall consider the same, and may hear evidence as to the character of the applicant, and as to his being a fit and proper person to be intrusted in such business, and, if the board be satisfied that such applicant is a person of good moral character, and a proper and worthy person to be intrusted in such business, such petition shall be granted, and the auditor of the county shall be directed to issue a license to such applicant for the period of one year, upon payment to the tax-collector of the county the sum. of sixundred dollars for such license, in advance."

This ordinance was duly attested, certified, and published, so that it took effect on November 30, 1890, and is admitted by both parties to be a valid ordinance, though neither a copy, nor the substance of the ordinance (No. 39) of which it is an amendment, appears in the record.

From the first Monday in January, 1892, until the trial of this action, A. J. Bell was the duly elected and qualified tax-collector of Ventura county, whose salary was two thousand dollars per annum. On February 24, 1894, he appointed the defendant, Bradley, his "deputy tax and license collector" for said county; and on the same day Bradley qualified by taking the oath of office, and his appointment had not been revoked at the time this action was commenced.

As tax-collector, Bell received the liquor license taxes according to ordinance No. 48, from the time he took office (January, 1892) until about October 15, 1894, but thereafter refused to receive them for the alleged reason

that it was not his official duty to collect or receive license taxes.

On November 9, 1894, the board of supervisors, at the request of the tax-collector (Bell) and of Bradley's attorney, made and entered an order that Bradley be employed to collect the license taxes, and thereafter, on December 5, 1894, entered into and executed the following written agreement with Bradley:

"Agreement of employment made this December 5, 1894, between the county of Ventura, a body politic and corporate, the party of the first part, and C. H. Bradley of said county, the party of the second part, in pursuance of an order of the board of supervisors of said county made and entered on November 9, 1894, witnesseth:

"That said party of the first part does hereby hire and employ the party of the second part to collect for the party of the first part all liquor and other business license taxes due and to become due to the party of the first part under the ordinances thereof now in force or hereafter, during the continuance of this agreement, to be passed, for a compensation or commission, to the party of the second part, of ten per cent on all sums collected hereunder by him; and said party of the second part, in consideration of the premises and of such commission of ten per cent upon all sums actually collected by him thereunder, does hereby promise and agree to and with the party of the first part faithfully and diligently to collect all such license taxes and safely keep the same and regularly deposit the same at least once in each month with the treasurer of said county; and the commission of ten per cent, above provided, shall be in full payment and satisfaction of the party of the second part for all services rendered by him hereunder.

"And as part and parcel of this agreement the said party of the second part promises and agrees to file with the board of supervisors, on the first day of their meeting in each month, a statement showing all license taxes collected by him hereunder, all moneys therefrom de

posited with the county treasurer, and all moneys, if any, remaining in his custody. Compensation of said party of the second part shall not be paid or otherwise. retained or allowed, except upon order of the board of supervisors of said county after claim therefor has been. regularly presented as in the case of other county claims.

"And it is further mutually understood and agreed that this agreement shall be and is hereby made terminable at the pleasure of the board of supervisors of said county, with or without notice to the party of the second part."

On February 4, 1895, Bradley presented to the board of supervisors his itemized claim for ten per cent on two thousand four hundred dollars, received by him as license taxes for which four liquor licenses had been issued, each for the term of one year. This claim was referred, by the board, to the district attorney for his opinion as to whether it was a legal charge against the county, and he reported to the board that it was not a legal charge against the county for any amount. Nevertheless the board allowed the claim and ordered it paid.

The appellant contends that the alleged contract of the county with Bradley, the order of the board of supervisors allowing Bradley's claim as a valid charge against the county, and the auditor's warrant for the payment of said claim, were unauthorized by law; and it is not denied that they were so, if it was an official duty of the tax-collector to receive the money required to be paid to him by ordinance No. 48, as a condition precedent to the issuance of a liquor license. Therefore, the whole controversy on this appeal may be determined by a decision of the question, whether or not it was an official duty of the tax-collector to receive the liquor li cense taxes imposed by the ordinance, No. 48.

It is not questioned, nor is it questionable, that the board of supervisors was authorized to impose such license taxes, "for the purposes of . . . . revenue . . . and to provide for the collection of the same by suit or otherwise" (County Government Act, sec. 25, subd. 27;

Const., art. XI, secs. 11, 12; People v. Martin, 60 Cal. 153; Ex parte Mirande, 73 Cal. 365); and although it had no power to create the office of license tax-collector (El Dorado County v. Meiss, 100 Cal. 273; County of Los Angeles v. Lopez, 104 Cal. 257), it had power to order the liquor license taxes, to which the ordinance (No. 48) related, to be paid to a county officer having authority to receive them; since, in this case, the ordinance required nothing more of the tax-collector than that he should receive those taxes when voluntarily tendered by applicants for liquor licenses. By no possibility could those taxes become delinquent; and, therefore, the supervisors properly omitted to provide any mode, "by suit or otherwise," to enforce payment of them. If the tax-collector was authorized to receive those taxes when tendered, though only by language merely permissive, or even by implication, it was his official duty to receive them. "Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory." (Mechem on Public Offices, sec. 593.) The remaining question, therefore, is, Do the statutes of this state authorize the tax-collector to receive the license taxes to which the ordinance (No. 48) relates?

It may be premised that the act of receiving or collecting license taxes of any kind for county revenue is an official function to be performed only by county officers invested for that purpose with a part of the sovereign power of the state, derived directly from the legislature (see dissenting opinion of Mr. Justice McKee, in People v. Ferguson, 65 Cal. 288, so far as adopted by this court in County of El Dorado v. Meiss, supra; also Rowe v. County of Kern, 72 Cal. 353, and Mechem on Public Offices, sec. 1), the legislature being prohibited by the constitution from delegating its power to create

a county office, or to prescribe or regulate the salary or compensation of any county officer.

From these premises it would seem to follow that the board of supervisors of a county has no power to create the office of tax-receiver or tax-collector, nor to fix or regulate the compensation of the incumbent of such office under any circumstances, even though the legislature should fail to create such an office; and this conclusion is not controverted by counsel for respondent. Yet they contend that the board of supervisors may, by contract, employ a person to perform the functions of tax-receiver, or tax-collector, for a specified consideration or compensation, to be paid by the county, in case the legislature fail to provide a county officer for that purpose. In what substantial respect does such employment differ from the creating of the office of tax-collector, and the fixing of the compensation of the incumbent thereof? I perceive only a difference in words expressing the same meaning. In each case the functionary represents and exercises the same sovereign power of the state. The same thing that is called an office in one case is called employment in the other. The functionary who in one case is called officer is called employee in the other. That which, in one case, is called salary, or fees of office, is called compensation of a servant in the other. It is unnecessary, however, farther to extend this line of argument, or to decide whether or not the supervisors of a county have power to supply delinquencies of the legislature in the matter of providing the necessary county officers, and prescribing their duties; since I think the legislature had created the office of tax-collector for each county in the state by section 4103 of the Political Code; and by section 4301 of the same code had declared that "the tax-collector must perform such duties as are prescribed in title IX, part III, of this code"; and the County Government Act of March 14, 1883, by section 57, had continued that office, and section 154 of the same act provides: "The tax-collector must perform