Pillsbury v. Brown

By the Court, Wallace, C. J.: This is an appeal from the judgment of the District Court of the county of San Joaquin, awarding a writ of mandamus, by which the appellant Brown, who is the Police Judge of the city of Stockton, is directed to pay over to Pillsbury, who is the District Attorney of the county of San Joaquin, the sum of $15, in the hands of the former as such Police Judge, which sum was collected of one Wentoby, as [479]part of a fine imposed upon him by the Police Court of the city, and is claimed by Pillsbury as his official, fee, to which he has, as he asserts, become entitled by reason of such conviction. Wentoby was arrested upon the charge of committing a misdemeanor, set forth in a verified complaint filed in the Police Court in the name of the People of the State of California, in which complaint it was alleged that the said Wentoby, on a day therein named, in the city of Stockton, was openly and publicly drunk upon the streets of said city, and did then and there conduct himself in a manner offensive to public decency, “ contrary to the provisions of Ordinance No. 4 of said city, and contrary to the forms of the statute in such cases made and provided, and against the peace and dignity of the People of the State of California.” To this complaint Wentoby pleaded not guilty, and upon trial in the Police Court was convicted of said offense, and was sentenced to pay a fine of twenty-one dollars, which sum he then and there paid to the Police Judge, and was, thereupon, discharged from custody. The complaint was prepared by Pillsbury, as District Attorney of San Joaquin county, and he, in the name of the people of the State of California, prosecuted the said action to judgment. It is true, as claimed by the District Attorney, that it is his official duty to “ institute proceedings before magistrates for the arrest of persons charged with, or reasonably suspected of public offenses.” (Pol. Code, Sec. 4,256, Subdivision 2), that is to say, charged with acts or omissions violative of law and amounting to felonies or misdemeanors (Penal Code, Sections 15-18.) The statute (Acts 1869-70. p. 170) provides a fee of $15 for the District Attorney upon each conviction for such misdemeanor, to be taxed against the offender and collected of him, and in cases where the same cannot be so collected of the offender, then to be collected of the county in which such conviction is had, and to be paid to the District Attorney out of the funds in the County Treasury. Did the offense, of which Wentoby was convicted in this instance, amount to a misdemeanor, upon a conviction of which the District Attorney was entitled to receive a fee of $15 ? We think it did not.