visions involved in the Mulerevy case, direct that all fees "no matter from what source derived or received," should be paid into the county treasury, nevertheless they did direct the defendant to collect and pay into the county treasury all fees "allowed by law," and this direction, we take it, is broad enough in its scope and effect to cover and control the disposition of all fees received by the defendant Cook in his official capacity regardless of the source from which they were derived.

That the fees received by county clerks under the federal statute in naturalization proceedings come within the category of fees "allowed by law," was definitely declared in the case of Freeholders etc. v. Slater, 85 N. J. L. 621, [90 Atl. 377], decided subsequent to the decision of the supreme court of the United States in the Mulcrevy case, where it was held that inasmuch as the county clerk received such fees for services rendered in his official capacity as clerk of the court in which naturalization proceedings were had, he was required to pay them into the county treasury under a statute which provided "that costs, allowances, percentages, and other perquisites of whatsoever kind which by law the county clerk may receive for any official acts or services rendered by him or his assistants, shall be for the sole use of the county.

We are not unmindful of the several cases from other jurisdictions holding, in effect, that when rendering services in naturalization proceedings the county clerk is acting as the agent of the United States separate and apart from and without regard to his official relations to the state, and that, therefore, the disposition of the fees charged and collected under the federal statute in naturalization proceedings was no concern of the state. These cases, however, were all decided previous to the rendition of the opinion of the supreme court of the United States in the Mulcrevy case, and therefore their effect as authorities upon the question presented here has been seriously impaired if not destroyed.

The circumstance that section 4233 of the Political Code, which fixes the compensation of county officers of counties of the fourth class (Santa Clara), at one time declared that the county clerk of counties of that class must pay into the county treasury all fees received by him in his official capacity from whatever source derived, and that such section was amended in 1911 (Stats. 1911, p. 1282) to read, "including

fees allowed by the government of the United States of America in all matters pertaining to the naturalization of aliens," was not an expression of the legislative will that the county clerk of every other county in the state might retain fees collected in naturalization proceedings for his own personal use and benefit. The amendment to the section in question, although more precisely expressing the legislative will and intent as to the disposition of fees received in naturalization proceedings, did not as a matter of law add anything to the meaning of the section as originally enacted, nor consequently by inference restrict the scope of the statutory provisions relating to county clerks throughout the state couched in the same general language as that relating to the county clerk of Santa Clara before its amendment.

The two cases of Alameda County v. Dalton, 148 Cal. 246, [82 Pac. 1050], and Sacramento County v. Pfund, 165 Cal. 84, [130 Pac. 1041], have no application to the facts of the present case. In the former it was the claim of Dalton that he, as the county assessor, was entitled to retain to his own use a certain percentage of the amount of poll taxes collected yearly by him under the terms of a statute which plainly provided that he was "to retain for his own use" the percentage in controversy, but which was in irreconcilable conflict with an earlier statute which expressly provided that he should not receive any compensation for his services in collecting poll taxes. The supreme court decided that the latter statute prevailed, and that it expressly justified the retention by Dalton for his own personal use of fifteen per cent of the poll taxes collected by him for the state.

The case of Sacramento County v. Pfund involved the right of the county clerk of that county to retain to his own use a certain percentage of hunting licenses sold by him under the hunting license act, which provided that "for each license sold, registered and accounted for by any person excepting by a fish commissioner, he shall be allowed as compensation out of the game preservation fund, ten per cent of the amount accounted for (Stats. 1909, p. 663). Construing this act the supreme court held that the phrase "any person" was designedly employed therein to differentiate the service of selling licenses from the duties ordinarily required of the county clerk in his official capacity, that is to say, that the selling of licenses was purely a personal service rendered by the clerk

as an individual; and that such differentiation indicated with sufficient certainty the legislative intent to confer upon the county clerk the right to retain for his own use the percentage provided for by the statute.

Clearly the cases immediately under discussion are not in conflict with the Mulcrevy case, and do not tend in any degree to support the claim of the defendant that he was entitled to retain the fees in controversy here for his personal use, if we are correct in our previously expressed interpretation of the intent and purpose of the provisions of section 216 of the County Government Act which were in force during the first term of the defendant Cook as county clerk, and continued in force during his second term in the form of section 4292 of the Political Code, and which required county officers to account for "the fees now or hereafter allowed by law except where such fees or a percentage thereof is allowed such officers. . . .

The judgment is affirmed.

Kerrigan, J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 19, 1917.

[Civ. No. 1807. First Appellate District.-November 23, 1916.] EDWARD BARRON ESTATE COMPANY (a Corporation), Appellant, v. W. M. WATERMAN et al., Respondents. LEASE RULES OF CONSTRUCTION.-The scope, purpose, and effect of a lease must be determined from a consideration of it as a whole rather than by a resort to any individual clause thereof, and so construed it must be given such an interpretation as will make it effective in conformity with the intention of the parties; if its terms are in any way ambiguous or uncertain it must be interpreted in the sense in which the lessee believed at the time of making it that the lessor understood it, and if different constructions of its clauses may be otherwise equally proper, that construction must be given

which will be most favorable to the party in whose favor the clauses in controversy were made.

ID.-TERM OF LEASE-DELAY IN COMPLETION OF PREMISES.-A provi sion in a lease, which designates dates for the commencement and termination of the term, that in case the demised premises shall not be finished and ready for occupancy by the date named for the commencement of the term, the rent reserved shall abate and not be payable until the premises are ready, and that the failure to have the premises ready shall not be a cause for vacating the lease, but that the term of the lease shall be extended so that the lessees shall be entitled to the premises for the full term, is intended for the benefit of the lessces, and they are under no obligation to retain the premises beyond the date definitely designated for the termination of the term.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.

The facts are stated in the opinion of the court.

Lilienthal, McKinstry & Raymond, for Appellant.

Theodore L. Breslauer, for Respondents.

LENNON, P. J.-This is an action for rent, and the only point presented in support of the plaintiff's appeal from the judgment entered in favor of the defendants involves the construction of certain clauses of a lease executed by the M. Fisher Company to the defendants on December 12, 1908, of certain premises in a building which was then in course of construction. Although the lease at the outset granted the demised premises to the defendants "for the period of five years commencing on the 15th day of January, 1909, and ending on the 14th day of January, 1914, at the monthly rental of $250," nevertheless, a subsequent clause of the lease provided that, "In case the demised premises shall not be finished and ready for occupancy by the 15th day of January, 1909, the rent hereinbefore reserved shall abate and shall not be payable until said demised premises are ready for occupancy; but it is expressly understood that the failure to have said demised premises ready for occupancy by the 15th day of January, 1909, shall not be a cause for vacating, annulling or rescinding this lease, nor shall the lessees by reason thereof be entitled to any damage, rebate or recoupment except the

rent herein before expressly provided and agreed upon; but in that event the term of this lease shall be extended so that the lessee shall be entitled hereunder to the occupancy of the leased premises for the full term and period of five years from and after the date when said premises shall be ready for occupancy." The demised premises were not made ready for occupancy until April 1, 1909, at which time the defendants entered into possession of the premises and remained therein under the terms of the lease until January 14, 1914. In the month of May, 1911, the lessor, M. Fisher Company, conveyed its interest in the lot of ground upon which was situate the building in which the demised premises were located, together with its interest in the lease, to the plaintiff. The defendants paid the stipulated rent for the full time that they actually occupied the premises, but after they had vacated the same the plaintiff made demand upon them for the payment of rent from January 15 to April 1, 1914. This demand, which was refused, was predicated upon the theory that the lease obligated the defendants to occupy or pay rent for the demised premises for a full term of five years from April 1, 1909, the date of the actual occupancy of the premises.

The scope, purpose, and effect of the lease of course must be determined from a consideration of it as a whole rather than by a resort to any individual clause thereof (Civ. Code, sec. 1641). So construed the lease must be given such an interpretation as will make it effective in conformity with the intention of the parties (Civ. Code, sec. 1643); and if its terms are in any way ambiguous or uncertain it must be interpreted in the sense in which the lessee believed at the time of making it that the lessor understood it (Civ. Code, sec. 1649); and if different constructions of its clauses may be otherwise equally proper, that construction must be given which will be most favorable to the party in whose favor the clauses in controversy were made (Code Civ. Proc., sec. 1864). Furthermore, the words of a contract, save in certain excepted cases not involved here, must be taken and applied in their usual and ordinary sense (Civ. Code, sec. 1644). The word "rebated" was doubtless used in the ordinary sense. Ordinarily, says Webster, "to rebate" means "to deduct from." The word "entitled" evidently was likewise employed in the lease, and is generally and ordinarily understood to mean to give "the right to demand or receive . . . to furnish with good