The statute is, that the District Attorney shall receive ten per cent for all amounts collected by him by action.
Service performed by him is a condition precedent to his title to the ten per cent. It is the very basis of his right. When he urges his claim to that compensation, the very first question to be asked him is, were the services performed by you? If he answers no, his claim has no foundation and falls to the ground. It is of no avail to set forth excuses or detail at length the impediments which prevented him from performing the labor. As long as it is confessed that he did not perform it, his title to the compensation cannot exist. Performance must precede compensation as parent precedes child.
The plaintiff complains that the Board of Supervisors prevented him from acting, and that other counsel usurped his place. This prohibition of the Board and intrusion of strangers were illegal, he says, because he alone is entitled to brings suits in the name of the county. Grant all this. What follows? Simply, that certain wrongdoers and intermeddlers have, without authority of law, impeded the District Attorney in the discharge of his duty. They have done him a grievous wrong. They have prevented him from performing the labor from which he was to reap a reward. They have placed themselves between him and the means of earning his compensation.
We have hitherto followed the assumption that the action of the Supervisors in discarding the District Attorney in an action where the county is a party, is unauthorized. This is plaintiff's theory, and we have endeavored to show that even upon that ground he has no cause of action. But we think the theory finds no support in the law.
Plaintiff argues that the Boardcould not discard him, because the statute is, that " he shall prosecute all actions for the recovery of debts accruing to his county."
Suppose he is himself the debtor, and the action is to be instituted against himself. Is he still entitled to prosecute the action? Shall he appear in the same suit as plaintiff's attorney and defendant in propria persona?
The same statute says that " it shall be his duty" to defend all actions brought against his county. Suppose he is himself the plaintiff, will he still be entitled to defend the action? To adduce a pertinent illustration: Suppose the plaintiff had instituted the present suit while District Attorney, could it be claimed that the statute would have authorized him to appear in it in his official capacity, as attorney for the defendant, the County of Santa Clara; and as such to have it in his power to confess judgment in favor of himself, the plaintiff?
Section ten of the Act provides that action for moneys not accounted for may be brought by the County Treasurer, in the name of the county, against the District Attorney. Will it be contended that the District Attorney is entitled to appear for the county in that action?
JUDGES: Crockett, J. Mr. Chief Justice Wallace, being disqualified, did not sit in this case. Mr. Justice Rhodes did not express an opinion.
OPINION
CROCKETT, Judge
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 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 H. M. Newhall on behalf of said defendants in said action, and in payment of said indebtedness of said Peter Donahue, C. B. Polhemus, and H. M. Newhall 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 was voluntarily dismissed by the plaintiff therein. But whatever else it may mean, it cannot be held, without straining the language, to include an averment that the collection was wholly the result of a compromise, induced solely by the pendency of the action. Pleadings are to be construed most strongly against the pleader; and if it was intended to be averred that the compromise was due exclusively to the pendency of the action, it should have been so stated in intelligible language, that an issue might have been framed upon the allegation.
The demurrer to the complaint was properly sustained.
Judgment affirmed.