Cole v. McKune

19 Cal. 422

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

Petition for mandamus. This proceeding was taken to determine tho question as to the right of the late District Attorney of Sacramento county, or his successor, the present incumbent, to take charge of the suits instituted and pending under the Acts of 1860 and 1861, for the collection of delinquent taxes in the city and county. By those acts a percentage is given the District Attorney on the amounts collected by suit. By the general act regulating the office of District Attorney, the outgoing Attorney is to hand over papers, etc., connected with his office to his successor, who is charged with the duty of prosecuting suits, civil and criminal, for the county. We see nothing in the Acts of 1860 and 1861 which places those tax suits on any different footing, in this respect, from suits on recognisances, or from the public litigation of the county, or of the Stfv. The policy of the- law seems to be, to have but one recognized pros,..,,1<ing officer and Attorney for a county; and the rendering of the official services required by law is dependent upon and follows the office, as in cases of clerks, etc.; and the fact that a portion of the business in the hands of the Attorney is unfinished, on the assumption of office by his successor, does not give him any authority to conclude it. A different rule ' applies to a portion of the business of the Sheriff, but this is because of a peculiar reason which has no application here.

As the compensation in these cases is given for the entire services of the Attorney, it would seem just and equitable that the outgoing Attorney should receive a ratable proportion of the per cent-age received, after the termination of the cases, by the successor; but this matter does not necessarily arise in this proceeding, which merely relates to the right of tho successor to appear as attorney of record in the suits brought by Mr. Cole.

Mandamus denied.