COMPENSATION AND FEES-FEES AND COSTS DEPUTIES AND ASSISTANTS, § 5%. SALARY AND EXTRA ALLOWANCE, § 7. POWERS AND DUTIES IN GENERAL, § 10. DISMISSAL OF CRIMINAL PROSECUTION, DUTY ΤΟ SEE THAT DEFENDANT IN PROSECUTION OR DEFENSE OF CIVIL OUTSIDE OF COUNTY OR DISTRICT, § 15. AUTHORITY TO WIND UP UNFINISHED PRESUMPTION OF AUTHORITY TO INSTITUTE VALIDITY OF ACTS OF DE FACTO DISTRICT ATTORNEYS, § 19. Right to retain additional private counsel in criminal cases. See Criminal Law, § 322. tended to regulate the salaries of district attorneys, as contradistinguished from fees to which they were entitled under existing laws, and does not repeal prior statutes allowing fees in addition to salaries.-Pillsbury v. Brown, 45 Cal. 46. § 2. Appointment, Qualification, and Tenure -Appointment. [a] Act of 1851 (Wood's Digest, p. 64), providing for the election of a district attorney in each county in that year and every two years thereafter, and act of 1855 (Wood's Digest, p. 561, secs. 46, 49), empowering the supervisors in each county to fill vacancies in such office by appointment, the appointee to serve until the next general election, and the person then elected to serve out the balance of the term of the original incumbent of the office, are not impliedly repealed by consolidation act of 1856, section 9, as to San Francisco, providing a different mode of filling vacancies, "where provision is not otherwise made in this or some other act."People v. Brown, 16 Cal. 441. [a] An assistant prosecuting district attorney, appointed by the board of supervisors of the city and county of San Francisco, under the act of April 3, 1858 (238), is not limited in his official action to any particular class of cases. The true construction of the statute is, that he shall be prosecuting attorney in the police court, and shall assist the district attorney in the discharge of his various legal duties. People v. Magallones, 15 Cal. 426. [b] In absence of objection by attorney general, appeal by county from judgment rendered against it will be dismissed on motion of district attorney, in pursuance of resolution of board of supervisors, although an attorney claiming to act as special counsel for the appellant opposes the motion.-Allen v. County of San Bernardino, 72 Cal. 450, 14 Pac. 18. [c] County Government Act of 1893, (Stats. 1893, p. 359), section 25, subdivision 36, declaring that the county board of supervisors shall have authority to authorize the district attorney to appoint an assistant district attorney, which office was thereby created, was not unconstitutional, since the assistant district attorney was but a deputy, and by section 61 of the same act the district attorney could appoint as many deputies as he saw fit, and, if not a deputy, the board had power to authorize the district attorney to fill the office when in their judgment the public interest required it. Freman v. Barnum, 131 Cal. 386, 63 Pac. 691. [d] Under Political Code, section 472, providing that, when a district attorney shall become disqualified from conducting a criminal prosecution, the attorney general may employ special counsel at the expense of the state, the attorney general must appoint special counsel in case of permanent disqualification of the district attorney, due to the latter having been defendant's attorney at a former trial of the case.-Toland v. Ventura County, 135 Cal. 412, 67 Pac. 498. [b] A contract by a board of supervisors to retain the county district attorney to attend to county litigation in another county, after the term of his office has expired, is not a contract for the increase of his salary, nor is it void because made with him during his term of office, if made in good faith.Jones v. Morgan, 67 Cal. 308, 7 Pac. 734. [c] Acts of 1869-70, page 170, provides for a salary for the district attorney of Fresno county, and for a fee of fifteen dollars for all district attorneys for each conviction in cases of misdemeanor, to be a county charge in Fresno county if the defendant therein is unable to pay it. Political Code, sections 42564258, prescribe the duties of district attorneys, and that, when not engaged, they shall attend before magistrates when required in cases of arrest. The attorney for Fresno county sued for fees for convictions in cases that he did not prosecute, nor attempt to collect the fees from the defendants therein, by execution or otherwise. Held, that the county was not liable.-Edwards v. Fresno County, 74 Cal. 421, 16 Pac. 239. [d] Political Code, section 4046, gives boards of supervisors the management and control of suits to which the county is a party, and act of April 23, 1880, empowers any county to sue in its own name for delinquent taxes, but district attorneys are not expressly authorized to sue for delinquent taxes; and one who does bring such action without the direction or ratification of the supervisors can recover no attorneys' fees of defendant, nor costs against the county.-San Diego Co. v. California Southern R. Co., 1 Pac. 897. FOR AUTHORITIES FROM OTHER STATES: See 17 Cent. Dig., cols. 273-291, §§ 18-25. § 512. Deputies and Assistants. [a] Under acts of 1893, section 173, and acts of 1897, sections 59, 215, 233, the deputy district attorneys of Tulare county who were holding office at the time of the enactment of the law of 1897 are entitled to the salary provided by the law of 1893.-McPhail v. Jefferds, 130 Cal. 480, 62 Pac. 735; Clark v. Jefferds, 130 Cal. 480, 62 Pac. 735; De Witt v. Jefferds, 130 Cal. 480, 62 Pac. 735; Bliss v. Jefferds, 130 Cal. 480, 62 Pac. 735. [b] The provision of the county government act of 1893, that the district attorney may appoint one assistant, at a salary of two thousand dollars, and two deputies, at a salary of fifteen hundred dollars, per annum, does not mean fifteen hundred dollars for the two deputies, but for each.-Freman v. Marshall, 137 Cal. 159, 69 Pac. 986. [a] Under the statute giving a district attorney a commission on money collected by him for the county, it is immaterial whether he recovers the money by action of debt or proceeds by mandamus to procure a warrant which is obtained and subsequently converted into money by the county. In either case, he is entitled to his commission.-Higby v. Calaveras County, 18 Cal. 176. [b] In an action prosecuted by the district attorney to recover a swamp-land assessment, delinquent before the adoption of the code, he is entitled to fifteen per cent of the recovery, to be assessed as costs.-People v. Hagar, 52 Cal. 190. [c] The district attorney of Lake county, in an action to recover a tax, is entitled to the percentage provided for in the act of March 5, 1870.-Lake County v. Sulphur Bank Quicksilver Min. Co., 66 Cal. 17, 4 Pac. 876. [d] If section 3553 of the Political Code were impliedly repealed, the district attorney could not be heard to say that costs and fees collected thereunder in his official capacity were paid to him illegally, and that he therefore has the right to retain them.County of Kern v. Fay, 131 Cal. 547, 67 Pav. 857. § 7. Salary and Extra Allowance. [a] Political Code, section 4330, as amended by act of March 28, 1872 (Stats 1871-72, p. 653), which fixes the salary of the district attorney of San Joaquin county at two thousand five hundred dollars in lieu of all the fees, was intended to regulate the salaries of district attorneys as distinguished from fees to which they were entitled under existing laws, and was not intended, and did not have the effect, to repeal prior statutes allowing fees in addition to salaries.-Pillsbury v. Brown, 45 Cal. 46. [b] Under Statutes of 1893, page 346, section 197, providing that the district attorney of K. county shall receive, as compensa tion for his services, a fixed annual salary; and section 216, prescribing that such salary shall be in full compensation for all services of every kind rendered by him as such officer-such attorney, holding office from 1895 to 1899, was not entitled to the fee of ten dollars for each suit of foreclosure against delinquent purchasers of school lands, authorized by Political Code, section 3553, passed in 1873, in addition to his salary, since the money was collected by him in his official capacity.-Kern County v. Fay, 131 Cal. 547, 63 Pac. 857. [c] Under sections 132 and 133 of the county government act of 1897 (Stats. 1897, p. 488, c. 277), which make it the duty of the district attorney to prosecute all persons charged with crime, and sue for the recovery of penalties and forfeitures accruing to the state or county, and to defend suits against the county, and to give, without fee, his opinion in writing to county officers and the board of supervisors, and prohibiting him from presenting any claim for allowance against the county, except for his own services, and under section 215 of the same act (page 572), which declares that the salaries and fees provided therein shall be in full compensation for all services rendered by the county officers or their deputies, and requiring deputies to be paid by their principals out of their salaries, unless otherwise provided, the district attorney cannot claim any extra compensation for his services, or for the services of any deputy or assistant, such as a stenographer employed in writing letters, pleadings, judgments, opinions, etc.-Humiston v. Shaffer, 145 Cal. 195, 78 Pac. 651. [d] Constitution, article 11, section 9, prohibits the increase of the compensation of county or municipal officers after their election, or during their term of office. The County Government Act of 1897, sections 132, 133, define the duties of the district attorney, and section 215 of the act declares that the salaries and fees provided therein shall be in full compensation for all services rendered by the officers therein named, or by their deputies, and provides for the payment of deputies by their principals out of their salaries. Held, that the county board of supervisors cannot appoint a salaried steno~rapher, for the district attorney, either directly or indirectly, by allowing a claim against the county for work done by such stenographer.-Humiston v. Shaffer, 145 Cal. 195, 78 Pac. 651. [e] Nor are the services rendered by such a stenographer personal expenses of the district attorney, within the meaning of section 228 of the same act (page 575), which makes the traveling and other personal expenses of the district attorney incurred in criminal and civil cases, and other matters in which the county is interesteu, a county enarge.-Humiston v. Shaffer, 145 Cal. 195, 78 Pac. 651. a com [b] The statute does not allow the district attorney commissions on sums paid into the county treasury by the debtor, on promise made by the board of supervisors in good faith, pending an action brought by the county to collect an amount claimed due. Where he is entitled to commissions, and a compromise is effected, attributable solely to the litigation, and the money is paid into the county treasury for the purpose of depriving him of his commissions, such averments must be made in the complaint to recover these commissions as will show such facts to have existed. In such case, an averment that a certain sum was collected by means of said action, which amount was paid into the county treasury in pursuance of a compromise made by the board of supervisors while the action was pending, is not sufficient.-Herrington v. Santa Clara County, 44 Cal. 496. [a] An out-going district attorney must surrender to his successor the prosecution of all tax suits pending at the time of the change of incumbents; but semble that he should receive a ratable proportion of the percentage collected from the same by his successor.Cole v. McKune, 19 Cal. 422. [b] The salary of the office of district attorney for a period when it is occupied by a person without right belongs to the party entitled to the office.-Dorsey v. Smith, 28 Cal. 21. § 10. Powers and Duties in General. [a] District attorney is mere ministerial officer. Sternes, Ex parte, 82 Cal. 248, 23 Pac. 38, 40. [b] District attorney is the officer authorized by law to take charge of and conduct county litigation.-Merced County v. Cook, 120 Cal. 277, 52 Pac. 721. FOR AUTHORITIES FROM OTHER STATES: See 17 Cent. Dig., cols. 302-310, §§ 34-37. § 11. Prosecution and Conduct of Criminal Proceedings. [a] It was error to withdraw from the consideration of the jury an admission by the district attorney, at the trial, that one of his witnesses was then under indictment for receiving stolen property; such admission being material, as affecting the witness' credibility, and the district attorney being competent to make it.-People v. Robles, 34 Cal. 591. [b] In the filing of informations the functions of the district attorney are ministerial only, and not appellate over those of the committing magistrate. He has no power to file an information for any greater or other offense than that specified in the commitment by the magistrate, though in accordance with the complaint made before the magistrate.-People v. Nogiri, 142 Cal. 596, 76 Pac. 490. [a] A district attorney has authority to bring an action of his own volition in the name of the people, upon the bond of the tax collector of his county.-People v. Love, 25 Cal. 520. [b] In all cases saving those embraced in section 8, County Government Act, district attorney can institute suit only under direction of supervisors.-Ventura v. Clay, 119 Cal. 214, 51 Pac. 189. [c] Subdivison 3 of section 136 gives district attorney no right to institute proceedings at will. It merely imposes duty to do so when directed by competent authority.Ventura v. Clay, 119 Cal. 215, 51 Pac. 189. [d] As a general rule all actions brought by or prosecuted on behalf of a county must be brought by authority of the board of supervisors, and where money has been collected for supervisors under contract with them for a percentage, the district attorney has no authority to prosecute an action in the name of the county to recover the amount of such percentage, without a previous order of the board of supervisors. The district attorney has only the limited power given him under section 8, where the board has ordered money paid without authority of law.-County of Contra Costa v. Soto, 138 Cal. 57, 70 Pac. 1019. fixed by state board.-Sacramento County v. Central etc. R. R., 61 Cal. 255. § 17. Authority to Wind Up Unfinished Business After Expiration of Office. [a] Suits brought by the district attorney of the city and county of Sacramento to collect delinquent taxes under the acts of 1860 and 1861 (Stats. 1860, p. 159; Stats. 1861, p. 119), and pending when his successor in office was qualified, must be turned over to such successor.-Cole v. McKune, 19 Cal. 422. [b] The fact that a portion of the business in the hands of a district attorney is unfinished, on the assumption of office by his successor, does not give such attorney any authority to conclude it.-Cole v. McKune, 19 Cal. 422. § 18. Presumption of Authority to Institute Proceedings. [a] Rule of presumption of authority of attorney has no application to district attorney whose powers and duties are defined by law.Sacramento County v. Central etc. R. R., 61 Cal. 255. [b] The district attorney, being an attorney at law, is presumed to be authorized by the proper party to institute the actions he may bring, in the absence of evidence to the contrary.-County of San Luis Obispo v. Hendricks, 71 Cal. 242, 11 Pac. 682. DITCHES. See Drains. Right to enjoin maintenance of ditch. See Injunction, § 47. Irrigation ditches, flumes and conduits. See Waters and Watercourses, § 238. DIVERSION OF WATER. Of non-navigable streams. See Waters and Watercourses, § 47. Of subterranean waters. See Waters and Water courses, 91. DIVERSITY OF CITIZENSHIP. As ground for removal of cause from state to federal court. See Removal of Causes, § 2. DIVESTITURE OF JURISDICTION. See Courts, § 33; Criminal Law, § 29. DIVIDENDS. of state savings banks. See Banks and Banking, 114. On corporate stock. See Corporations, §§ 170-175. DIVIDING FENCES. See Fences. DIVIDING LANDS. See Adjoining Land Owners; Boundaries. DIVIDING PROPERTY. See Descent and Distribution; Partition. DIVIDING WALLS. See Adjoining Land Owners; Party-walls. DIVISION. Of drainage districts. See Drains, § 14. DIVISION FENCES. As boundaries. See Boundaries, § 33. DIVISION LINES. Location of. See Boundaries, § 26. DIVISION OF CAPITAL STOCK. Among shareholders of private corporations. See Corporations, § 83. DIVISION OF CHURCH. Apportionment of property on division of church. See Religious Societies, § 9. |