I dissent.
I agree that the board and the defendant acted in violation of a statutory mandate with respect to the rental of the engineering equipment; and with the conclusions reached on all other questions disposed of in the majority opinion except that reached upon the subject of mileage paid for the use of automobiles employed in transportation with which I emphatically disagree.
The question involved in the action was whether the county surveyor of Marin County violated the provisions of section 920 of the Political Code in entering into a contract with the board of supervisors whereby it was agreed that he should receive from the county (a) certain rental for the use of surveying equipment owned and furnished by him to county employees assisting him in performing his duties in the field; and (b) additional sums of money as mileage for the transportation of said employees to and from their places of work in automobiles owned and furnished by the county surveyor. If the inhibitions of said section 920 were thereby violated, then all payments made to him pursuant to said contract were void, and the judgment entered in favor of the county for the recovery of said moneys should be affirmed in its entirety. The appeal is now before the court on rehearing. The majority opinion filed as the result of the former hearing, written by Justice Knight and in which I concurred, held that said contract was illegal as to both subject matters to which it related, and that therefore the judgment should be affirmed as rendered. (County of Marin v. Messner, (Cal. App.) [108 Pac. (2d) 74].) That decision was in conformity with *593the ruling of the trial judge who passed upon the demurrer to the complaint, and also with the decision of the trial judge who heard and determined the cause on the merits. If that part of the contract was valid, authority therefor must be found either in the provisions of the County Government Act fixing the salary of the surveyor of Marin County, or in the provisions of section 4044 of the Political Code relating to county surveyors generally. In the opinion written by Justice Knight, it was stated in substance that the provisions of section 4044 were no broader in their scope than those of the County Government Act, and that under the latter the surveyor was authorized to collect mileage to cover his own personal expenses only. I adhere to the views expressed in that opinion, and adopt the following portion thereof in my dissent herein:
“It is well settled that fees and compensation of public officers, being of statutory origin, may be collected and retained only when they are specifically provided by law; moreover, the laws granting the same are to be strictly construed in favor of the government; and where ambiguity arises and the enactment admits of two interpretations the rule of strict construction in favor of the government must be applied. (Irwin v. County of Yuba, 119 Cal. 686 [52 Pac. 35]; City of Corona v. Merriam, 20 Cal. App. 231 [128 Pac. 769]; County of San Diego v. Bryan, 18 Cal. App. 460 [123 Pac. 347]; County of Santa Barbara v. Rucker, 35 Cal. App. 676 [170 Pac. 860]; County of Santa Barbara v. Twitchell, 179 Cal. 772 [178 Pac. 945].) Here the three county government acts above referred to provided merely that ‘in addition thereto [referring to the annual salary] he shall receive his actual travelling and other necessary expenses incurred by him while engaged in work for the county’ (Italics ours); and it is apparent that the provisions of section 4044 of the Political Code do not in any way enlarge upon the provisions of the county government act. [Italics added.] Fairly construed, therefore, in the light of the legal rules above cited, the language employed imports a clear legislative intent to limit the matter of travelling and other necessary expenses therein mentioned to such as are incurred personally by the surveyor. . . . That being so, there is no legal ground upon which those provisions may be extended judicially to include also expenses incurred by the surveyor for the transportation *594of county employees working under his supervision, much less rentals for engineering equipment used by said employees.
“If it had been the intention of the law-making body to include therein the travelling and other expenses of the surveyor’s assistants and other employees of the surveying party, it could easily have been accomplished by the use of appropriate language to that effect, as was done in the eases of several other counties. For example, the provision relating to Mendocino County (Stats. 1931, p. 1120) reads: ‘The surveyor shall also be paid the actual and necessary expenses of transportation of himself, his deputy and surveying crews, and subsistence of himself and deputy, all while in the field.’ And in the case of Siskiyou County the provision reads (Stats. 1931, p. 1124) : ‘ . . . that said county surveyor shall be allowed all necessary transportation and expenses incurred by himself or deputies for work performed in the field.’ The provisions relating to some of the other counties have been framed in substantially the same language. Moreover, the fact that in the provisions relating to other counties the legislature expressly granted the right of the surveyor to be paid also for the transportation and subsistence of the members of the surveying party working under his supervision, may be taken as evidence of a legislative interpretation that such right did not exist under the general section 4044 of the Political Code; otherwise it would not have deemed it necessary to include the same in provisions relating to particular counties. ’ ’
Cases arising under section 4307 of the Political Code, cited in the majority opinion, should not be persuasive in this ease. It is a well-known fact that in the detection of crime and in the prosecution thereof it is important that the activities of peace officers should not be blazoned forth to the public perhaps to the detriment of an innocent person, at least during the period of investigation; and there is sound reason for permitting the advancement and expenditure of funds by a peace officer without prior authorization and with the right to be subsequently reimbursed therefor. An apt illustration is the necessity at times for the investigation of actions of county officials where prior authorization for the necessary expenditure might not be easily obtained. There is no reason why a surveyor should be given a free hand in the expenditure of county funds unless by specific authorization. None of the *595peace officer cases cited in the majority opinion approve the use of personal property of district attorneys or sheriffs, such as automobiles used by investigators, a charge for which is made against the county. The automobiles in the present case were owned by defendant and operated under his direction and supervision; the rental or mileage therefor was paid him by the county. In other words, the defendant as county surveyor contracted with himself to supply automobile transportation to county employees. As surveyor he determined the necessity and extent of such transportation. In his personal capacity he supplied the means of transportation, collecting therefor as a public official for his personal business. The principle that county officials shall not have a personal interest in public contracts is controlling in this ease. (Pol. Code, sec. 920.)
In his official capacity the surveyor had a financial interest in subject matter not specifically permitted by statute and the trial court so found. The informal contract, originally entered into without official approval, is against public policy. Judicial sanction of such conduct tends to widen the door to further disregard of statutory provisions by county officers. The transaction, if not based upon fraud, is at least tainted with illegality. The statute requires a strict rather than a liberal construction. In my opinion the judgment should be affirmed without modification.
Plaintiff and appellant’s petition for a hearing by the Supreme Court was denied June 26, 1941. Edmonds, J., voted for a hearing.