Herrington v. Santa Clara County

By the Court, Crockett, J.: In this case we are of opinion: First—That under the statute regulating the office of District Attorney and prescribing the duties of that. officer, it is not a duty enjoined upon him by law to prosecute or defend civil actions in which the county is interested which are pending in any other county than his own. The plaintiff could not have been required to go to San Diego, Plumas, or any other place beyond the limits of his own county, for the prosecution or defense of an action brought by or against Santa Clara County. It was not, therefore, a part of his official duty to prosecute the action in the Fourth District Court against Donahue and others; and as he was under no legal obligation to perform this service, the Board of Supervisors had the correlative right to decline his services when tendered, and to employ other counsel.

Second—If it be conceded, however, that it was the duty of the plaintiff, and consequently that he had the right to prosecute that action, his complaint, nevertheless, fails to show that he is entitled to the commissions which he claims. Section fifteen of the Act of 1851, regulating the office of District Attorney (Stats. 1851, p. 189), provides that he “ shall be entitled to receive, for all amounts collected by him for the State or county by action, ten per cent” of the amount collected. The complaint not only fails to show that the amount received of Donahue and others was collected “by action,” but it shows affirmatively that the payment was the result,of a compromise pending the action, and that the cause was voluntarily dismissed before judgment; and it further appears from the complaint that the money was not collected by the plaintiff. The most that can be affirmed in support of this claim is that he was ready and willing to prosecute the suit, and would have recovered the money if the action had not been terminated by a compromise. But [507]the power of the Board to compromise the claim is unquestionable, and the condition precedent, on the performance of which the plaintiff’s right to commissions depended, has not been performed. The statute does not award to the District Attorney commissions on sums paid into the County ^Treasury directly by the debtor on a compromise made by the Board of Supervisors in good faith, pending the action. It may be that if the compromise was attributable solely to the pending litigation, and the money was paid directly into the treasury for the purpose and with the intent to deprive the District Attorney of his commissions, he would, nevertheless, be entitled to them. In such a case he might possibly be held to have substantially collected the money by action, though it did not actually pass through his hands. The only averment in the complaint on this point is that “there was collected by means of said action * * * the sum of one hundred and twenty-eight thousand dollars, which said amount was forthwith paid into the County Treasury;” and it then proceeds to aver that the money was collected and paid into the treasury “ in pursuance of a certain agreement and compromise of said action made by said Board of Supervisors on behalf of said Santa Clara County with one Charles Mayne, Peter Donahue, and IT. M. Hewball on behalf of said defendants in said action, and in payment of said indebtedness of said Peter Donahue, C. B. Polhemus, and II. M. Hewhall to said County of Santa Clara, and in discharge of the liabilities, of said defendants in said action.” There is no averment that the compromise was the result of, or in any manner 'affected by the pending action, unless the allegation, that “there was collected by means of said action * * * the sum of one hundred and twenty-eight thousand dollars,” be tantamount to such an averment. But it cannot be so considered. It is not very clear what the pleader intended by the averment that a sum of money was collected by means of a pending action never brought to trial, and which