Article XII, section 1, of our Constitution provides: "Every person holding any civil office under the State, or any municipality therein, shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified; but this shall not apply to members of the General Assembly, nor to members of any board or assembly, two or more of whom are elected at the same time; * * It is also provided by the statute as follows: "In case of a vacancy occurring in the office of county commissioner, the Governor shall fill the same by appointment, and the person appointed shall hold the office until the next general election or until the vacancy be filled by election according to law." See section 790, 1 M. A. S., page 750. Section 888, 1 M. A. S., page 778, provides: "In case the office of county treasurer shall become vacant, the board of county commissioners shall appoint a suitable person to perform the duties of such treasurer; and the person so appointed, upon giving bond, with like sureties and conditions as that required in county treasurers' bonds, and in such sum as said board shall direct, shall be invested with all the duties of such treasurer, until such vacancy be filled or such disability removed." There can be no doubt that at the coming November election there should be elected for the regular term beginning in January 1907, a county treasurer and also a county commissioner. As the said November election will be the next general election after the aforesaid vacancies occurred, I am of the opinion that it would be legal also to elect then some one to fill the unexpired or short term of each office. However, if no election shall be held for said short or unex pired terms, I think the said appointees or present incumbents of said offices would be entitled to hold over until January, 1907, when they would be succeeded by the officers elected to said positions for the regular term. Yours truly, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. COUNTY TREASURER. A county treasurer is not authorized to retain fees for the collection of State taxes. April 11, 1906. HON. JOHN A. HOLMBERG, State Treasurer, State Capitol. Dear Sir-You have submitted to this office letters from the State Auditor and Howard H. Dawson, county treasurer of Dolores county, showing that said Dawson, as such county treas urer, has retained certain fees for the collection of State taxes. In compliance with your request for an opinion as to whether or not said county treasurer is entitled to such fees, I beg to say that section 10, chapter 134, Session Laws 1894, provides: "The county treasurers of the several counties of this State shall receive as their only compensation for their services, an an nual salary, to be paid quarterly out of the fees, commissions and emoluments of their respective offices, and not otherwise." The act in relation to public revenue, adopted March 22, 1902, provides that: "No expenses incurred in the assessment or collection of taxes shall be paid by the State, except as otherwise provided herein." Session Laws 1902, section 4, page 44. I am unable to find any provision in said act which authorizes the payment of fees by the State for the collection of taxes. On the contrary, section 202 of said act makes each county responsible to the State for the full amount of taxes levied for State purposes, except in case of erroneous assessments or in cases where the same are found to be illegal, etc. Session Laws 1902, page 146. I am therefore of the opinion that the deductions so made by said county treasurer are unauthorized by law. Yours truly, N. C. MILLER, Attorney General. By W. R. RAMSEY, Assistant Attorney General. DINING CARS. Dining cars not liable for $25.00 license fee provided for in Revenue Act of 1902. May 5, 1906. HON. JOHN A. HOLMBERG, State Treasurer, State Capitol. Dear Sir--I have your request for an opinion concerning the liability of dining cars for the payment of the license fee provided for in section 3810, M. A. S. (R. S.) * * * This statute provides that every person, company or corporation for each and every saloon, restaurant, hotel, club, drug store, liquor store, or other place where liquor is sold, shall pay a $25.00 license fee. The word "dining car" is not included in any of these descriptive terms, and the word "other place" includes anything similar to those designated in the act. For instance, it is quite probable that a "dining car" is similar to a "restaurant," and therefore would be included, if no other law prevented. But we have a special statute, found at section 283 of M. A. S. (R. S.), reading as follows: "Any person or corporation operating hotel cars, dining cars, or buffet cars, upon any railroad, shall have the right to sell cigars, wines, liquors and beverages of all kinds to passengers traveling upon any train to which such car may be attached, without obtaining from any town, city, county or state, license as liquor dealer or otherwise; Provided, That wines, liquors and beverages shall be sold only to passengers on the train upon which the same may be sold for the use of such passengers while upon the journey." This statute was passed in 1891, and the revenue act imposing the $25.00 tax was passed in 1902. There is no express repeal found in the latter act and repeals by implication are not favored, and where it is to be gathered from all the facts and circumstances concerning the respective acts of the Legislature, that it did not intend one to repeal the other, a court would not hold that a previous act was repealed. At the time the Legislature passed the first act, there was no State license, and yet the Legislature expressed that dining cars should be exempt from a State license. This act is careful to mention that dining cars are exempt from all forms of license imposed by the State, county, city or town. It is a special statute, and passed evidently for the reason that dining car service will not afford the expense of the various liquor licenses imposed by the State and its agencies. Moreover, it is a special statute, and will not be repealed by a general statute unless there is such an apparent conflict that one or the other must fall, and this does not appear to be the case in this instance. In fact, there is no conflict that would interfere with both statutes being given effect. It is therefore my opinion that dining cars are not subject to the $25.00 license tax. Respectfully submitted, N. C. MILLER, DISTRICT ATTORNEYS COMPENSATION-REPORT. District attorneys are required to file an annual report with the Secretary of State, embracing all the earned fees of their office, including the fees earned by their deputies. Compensation limited. HUGO SELIG, ESQ., January 25, 1905. District Attorney, Montrose, Colorado. Dear Sir—I have your letter of the 21st inst., in which you request an opinion from this office relating to the compensation of district attorneys, as provided in sections 1936i and 1936j, of Mills' Annotated Statutes. You also submit the following questions, to wit: 1. Are all the earned fees of the office of district attorney, including the fees earned by deputies, the fees contemplated by the statute, of which he must make a report? 2. Is the whole salary of the office of district attorney, including the fees earned by his deputies, limited to the sum of three thousand dollars? Section 1936i provides that: "Each district attorney shall, at the end of each year of his term of office, render a true and correct itemized statement, under oath, to the Secretary of State, which statement shall be filed and preserved in the latter's office, of the fees received by him as district attorney for the preceding year, and the surplus received by him (if any) over and above the annual sum herein limited, shall be repaid to the county treasurers of the several counties of his district, each such county to be repaid such proportionate sum of such surplus as the amount each has paid him during such year shall bear to the whole fees collected in the district by him." While the statute does not expressly direct that a report shall be made of the fees earned by deputies, I am of the opinion that it is the duty of the district attorney to include such fees in the statement made by him. From a legal standpoint the deputy is the agent, and whatever is done by him is considered as the act of his principal. So, in answer to your first question, I would say that it is the duty of the district attorney to include in the annual statement required by the law to be made by him to the Secretary of State, all the earned fees of the office of district attorney, and all the fees earned by his deputies. In answer to your second question, I am of the opinion that it is the intention of the statute to limit the full compensation of the district attorney of your class to the sum of three thousand dollars per annum. He is not allowed for his individual services, including the salary paid by the State and all fees earned by himself and his deputies, to receive more than said sum. Section 1936j limits the compensation for services rendered by deputies to the sum of two thousand dollars annually to each deputy, payable out of the fees of the office of the district attor ney. It is provided, however, that such compensation shall not be allowed in excess of the sum approved in writing by the district attorney of such district. In other words, I think it is made the duty of the district at torney to include in the annual statement required to be made to the Secertary of State, all fees earned by himself and his deputies for the preceding year. Then the surplus over and above the compensation to himself, limited to the said sum of three thousand dollars, and the compensation of his deputies, fixed as required by section 1936j and payable out of the fees of the office of the dis trict attorney, shall be repaid, as required by law, to the county treasurers. Inasmuch as the law makes provision for the collection of all the earned fees by the district attorney, it is fair to presume that all the fees earned by said office have been received, or, at least, could have been collected by proper diligence on the part of said officer. By section 699, 1 M. A. S., provision is made for the payment of costs in criminal cases by the county in which the offense is committed when the defendant shall be convicted and is unable to pay them. The record should be made to show in every criminal case either that the defendant is insolvent or a judgment against him for costs. This is usually done after the jury retires to consider its verdict, by placing some competent witness on the stand |