Opinion of the Court-Rhodes, J. charged private persons, and he is met with the objection. that by the Consolidation Act he is entitled to a salary of fifty dollars instead of the fees claimed. In other words, he is entitled to such compensation for his services rendered for the city and county as the Legislature directs to be paid to him, and no more. The appellant's construction of subdivision third of section ninety-five, if it could be maintained, would remove most of the restrictions of the Consolidation Act that were intended to limit the appropriations from the city and county funds, for services rendered for her by her officers, who under the general laws receive their compensation in fees and commissions. The Consolidation Act was passed subsequently to the Act establishing the rates of the Tax Collector's commissions; and by the provisions of the Act requiring the taxes to be paid directly to the Treasurer, and allowing him only commissions as Treasurer, not those of the Tax Collector, the Act of 1855 regulating the Tax Collector's fees was suspended, so far as San Francisco was concerned-but perhaps it was not repealed. Upon the passage of the Revenue Act of 1857, the collection of taxes was given to the Tax Collector, an office then existing under the city and county government, and acting [442] *under certain restrictions precluding him from re ceiving payment from the Treasury for services performed for the city and county; and when the collection of taxes was committed to his hands, those restrictions were not expressly repealed, and it cannot be said that they were repealed by implication, because, as already remarked, the Legislature seemed to be careful to preserve all the restrictions and limitations of the Consolidation Act. It is declared, in section eleven of said Act, that "no fees or compensation, other than as expressly allowed in this Act, shall be received by any officer of said city and county, or any district, nor shall any allowance be made to them, or any of them beyond the fixed compensation aforesaid, under the name of office-rent, fuel, lights, stationery, contingencies or otherwise." And the same prohibition, only in more Opinion of Rhodes, J., on rehearing. comprehensive language, is found in the Act of 1857, section eleven, amendatory of that Act. This restriction was applicable to the Tax Collector, upon his entering upon the discharge of further duties, as clearly as to the Treasurer, who was relieved of the performance of duties theretofore incumbent upon him, or as to any officer of the city and county government. We are of the opinion that the Act of the 17th of April, 1855, was not expressly repealed, but that it was modified and restricted in its operation, so as to accord with the provisions of the Consolidation Act, and that so far as it was in conflict with those provisions it was repealed by implication. And we are further of the opinion that the restrictions and limitations of the Consolidation Act, and the amendatory Act of 1857, were not repealed, either expressly or by implication, so far as the Tax Collector is concerned, by the Revenue Act of 1857. We therefore hold that the appellant was not entitled to the commissions claimed in the accounts presented by him to the Board of Supervisors, and that the Board had not legal power or authority to approve or allow them. The judgment is affirmed. *Mr. Justice SHAFTER, having been of counsel, did [443] not sit on the trial of this case. Mr. Justice SAWYER expressed no opinion. By the Court, RHODES, J., on petition for rehearing: We are satisfied of the correctness of the conclusions to which we have arrived in this cause, but in argument we used language more comprehensive than the necessities of the case required, or perhaps was justified by the statutes under consideration. We said that "all the officers charged with the maintenance of that government (the government of the city and county of San Francisco) were named in the Act; and the compensation to which each of them was entitled, whether by way of salaries, fees or commissions, was ex Opinion of Rhodes, J., on rehearing. pressly mentioned-unless the Tax Collector formed an exception-and in case where the compensation was payable out of the city and county Treasury, the amount, or the maximum amount, was specially fixed in the Act." This does not comprehend such officers or employees as are suggested by counsel in his petition for rehearing, such as the officers of the Fire Department, officers and employees of the Hospital, City Attorney, Judge of the Superior Court, etc. We intended to include those officers who, under some name, are more particularly charged with the government of a city or a county, as Mayor, Aldermen, Supervisors, Clerk, Sheriff, Marshal, Treasurer, Assessor, etc.; and to officers charged with functions of the character of those mentioned, as well as to some others named in the Consolidation Act, our remarks properly and correctly apply. If the position of the learned counsel can be sustained, that "where the offices have existed before, the compensation is left to existing laws," it will be found that the grand purpose of the Consolidation Act, which is apparent without great familiarity with the Act, and with no acquaintance with its practical workings-that is, economy in the administration of the municipal government-will be defeated, and a large portion of the wholesome restrictions in the Act become nugatory. [444] *We see no difficulty in maintaining that when the Tax Collector is required to collect the delinquent taxes, and in the discharge of that duty he is permitted by the revenue laws to collect from the delinquent, or from the purchaser at the tax sale, certain fees over and above the taxes, and is required to pay over to the Treasurer the taxes collected by him, there is left in his hands the fees he collected. And we find as little difficulty in understanding that after the general revenue law has committed to the Tax Collector the collection of all the taxes, and has allowed certain commissions on the collection both of State and city. and county taxes, and the law has directed him to pay over all the taxes without any deduction for commissions, and Points decided. has saved the restrictions of the Consolidation Act, one of which was that "no payment can be made from the Treasury, or out of the public funds of the county, unless the same be specially authorized by this Act;" that if the Consolidation Act has not "specially authorized" the payment to the Tax Collector of such commissions out of the funds of the city and county, the Board of Supervisors are not authorized to allow or audit a claim for such commissions, and the Tax Collector is not entitled to receive them; and that if there is no restriction to prevent him from receiving the commissions on the funds collected for the State, he is entitled to have them allowed and paid. It appears obvious that the appellant's construction of subdivision third, of section ninety-five, of the Consolidation Act, holding that it authorizes the payment of the commissions in controversy, cannot be maintained, for that subdivision merely specifies the General Fund as the fund out of which fixed salaries or compensations shall be paid; and if his construction could be maintained, it would result in the absurd conclusion that the commissions for collecting the State tax would be payable out of the General Fund of the city and county. Rehearing denied. Mr. Justice SAWYER expressed no opinion. *THE PEOPLE v. ROBERT DODGE. [445] 1 PERSONAL ATTENDANCE OF WITNESS IN CRIMINAL CASE.--When an absent 1. Distinguished, People v. Francis, 38 Cal. 187. 2. Cited, People v. Brown, 46 Cal. 103. Argument for Appellant. APPEAL from the District Court, Fourteenth Judicial District, Nevada County. The defendant was indicted for the crime of murder, on the 11th day of February, 1865. On the 15th day of March, 1865, the case was set for trial in the District Court for the 4th day of April, 1865. On the last-named day the defendant applied for a continuance, on the ground of the absence of Margaret Dodge, one of his witnesses. It was shown that the witness resided in Nevada County, and a subpoena had been served on her, but she had been ill for several weeks; too ill to leave her house without endangering her health. Her attending physician testified that if quiet was secured to the witness, she might possibly be able to attend the trial within two months. The District Attorney opposed the continuance because the witness lived in Nevada County, and had been sick for several weeks, and the defendant had made no effort to have her testimony taken by commission, as by law provided. The motion for a continuance was denied, and the defendant was convicted and sentenced. The defendant appealed. Dibble & Belden, for Appellant. In many of the States the defendant in a capital case is allowed a continuance for one term, almost as a matter of course. (2 Grah. & Wat. N. T. 699.) And if the party, when called for trial, still finds himself unprepared, Courts are extremely indulgent in granting adjournments, even where it is simply expedient that a continuance should [446] be had. *(3 Grah. & Wat. N. T. 894; Turner v. Morrison, 11 Cal. 22.) The requisite showing for a continuance is, that a material witness is absent; that due diligence has been used to procure his attendance; that the same fact cannot be proven by any other person; the probability of procuring his attendance within a reasonable time, and that the application is not made for delay; and when no suspicious or |