Higby v. Calavers County

Baldwin, J. delivered the opinion of the Court Cope, J. and Field, C. J. concurring. This suit was brought by the plaintiff to recover a sum of money alleged to be due by the county to the plaintiff, as a commission allowed by law for the collection of a debt of the county by legal proceedings. It seems that the proceeding adopted was a writ of mandamus to the Auditor of Amador, under which proceeding judgment was had for the relator, the warrant issued, and afterwards disposed of by the county of Calaveras, and a sum of money realized from the sale. It is not denied that the District Attorney is entitled to a commission on claims or money^demands upon which he sues and collects money. The duties and rights of District Attorneys in this State are defined by the Act of April 29th, 1851. (Wood’s Dig. 64, 65.) By section three of that act, he is made, public prosecutor in Ms county. This evidently extends to crimes alone. By section four, he must attend the Court of Sessions and District" Court of his county. By section seven, his whole duty is defined to consist in drawing indictments; defending suits against his county or the State ; prosecuting recognizances, and all actions for the recovery of debts, fines, $€nalties and forfeitures accruing to the State or county, etc. By section eight, it is provided that he shall give receipts for all moneys received in his official capacity, and by section nine, he is to render an account of the samg at certain fixed periods. By section fifteen, he ig to receive the salary allowed by law., in addition to fees allowed for the prosecution of offenses and forfeited recognizances. He is also to receive ten per cent, on all amounts “ collected by him for-the State or county by action.” But it is argued that this case is not brought within the purview of the statute, for the reason that this proceeding was not an action, but a mere mandate—not brought for the recovery of money, but to enforce a specific obligation, the direct effect of which wrns not the collection of money, but the enforcement of a ministerial duty, which resulted in securing the evidence of a debt rather • than payment of it. We think, however, that there is more of ingenuity than soundness in this view. The statute makes no other [179] provision for this service, and we cannot suppose the Legislature meant that the compensation of the District Attorney should be made dependent upon the nature or form of the action. The substantial thing intended was a proceeding whereby the claim might be realized, and whether this were by action of debt or mandamus was not important, if this end were secured. Nor is it important whether this result be obtained by a judgment for money or for anything else which was equivalent or could be made equivalent to money. The assurance of the warrant by a judgment affirming the indebtedness of Amador county was, in effect, the collection of the money, or the securing it to the county of Calaveras; and when that county used the warrant as money, it became liable to the Attorney for his fees as if the money had,been directly paid to it. This would be the true construction of an ordinary contract between counsel and client; and we see no reason for a different rule here. The next objection to the judgment is, that the statute of limitations of two years bars the plaintiff’s claim. But it is well answered, that by one of the subdivisions "of section seventeen of the statute (Wood’s Dig. 47) it is provided “ that an action upon a liability created by statute, other than a penalty or forfeiture,” may be brought within three years. Unless this clause embraces .the case at bar, it is difficult to see to what class of cases it has application. The act first cited casts this duty of bringing suit on county diaims on the District Attorney. This duty is not cast by contract, but by the law, and the same law provides the compensation, or, in other words, creates the liability upon the part, of the county to pay the compensation. The ingenious argument in behalf of the appellant would be better sustained if the statute merely authorized a contract on certain terms; but it does not purport so to do, but, in the given events, it casts a duty, and for that duty creates a liability. Whatever nice distinctions exist, as shown by the cases cited by the appellant’s counsel, between liabilities having relation to the statute and those which are the creatures of statute, we think they do not apply here; for the duty to attend to this business only exists by force of the statute, and the obligation to pay for it a fixed rate is given by the same statute. The liability may be said, there [180] fore, to come exclusively from the statute—to be created by it. If the Legislature had provided that, in consideration of receiving this compensation, the Attorney should refund to the county the costs if the suit failed, we apprehend that it could scarcely be contended that this liability would not be within this clause of the statute: for the obligation would owe its whole existence to the statute. Some other points are made, but it is not deemed necessary to notice them in detail. Judgment affirmed.