The plaintiff, not having collected the taxes in question, is not entitled to commissions or fees for their collection. Not having been prevented from collecting them by the act of the defendant, plaintiff is not entitled to recover of defendant any sum as money had and received to and for his use and benefit.

Judgment affirmed.

The tax collector of Placer County was not authorized by law to receive less than the whole amount of taxes (State and county) levied and assessed on one piece of property. The taxes claimed to have been collected in this case were those levied and assessed for county purposes only. The State taxes were not collected. The plaintiff did not then collect the whole amount of taxes levied and assessed on one piece of property. Conceding that it must be regarded that plaintiff, as tax collector, did collect the amounts claimed to have been paid, he did not comply with the law in making such collection. Not having complied with the law, I cannot see what title he has to any commissions.

I think the judgment should be affirmed.

Myrick, J., dissented.