Rocca v. Boyle , 166 Cal. 94 ( 1913 )

This is an application for a writ of mandate to compel the defendant, as auditor of the city and county of San Francisco, to audit, approve, and allow a certain demand against the city and county of San Francisco in favor of the plaintiff, as compensation for his services as detective under the employment of the district attorney of said city and county.

The plaintiff was employed by the district attorney as a detective to search for witnesses and secure a statement of their testimony in aid of the prosecution of persons believed to have committed certain crimes in San Francisco, for which work the agreement made by the district attorney was that he should be paid at the rate of five dollars a day and his necessary expenses. The suspected persons were Italians. The plaintiff spoke the Italian language. It was necessary to have the investigation made by some one familiar with that language. Plaintiff was engaged in the work fifteen days, and expended therein during that time ten dollars. He made out his demand in due form for the sum thus earned at the agreed rate. At the end of the month the district attorney made a statement verified by his oath showing the services of plaintiff, the amount charged therefor, and the other details required by section 12 of chapter III, article III, of the San Francisco charter, and delivered the same to the defendant, as such auditor, for his examination and information in auditing and allowing the plaintiff's demand. A request was thereupon made upon defendant that he proceed to audit and allow the plaintiff's demand, and he refused to do so. No reason was given for such refusal. Upon the hearing of this case the only reason advanced for the refusal was that it was necessary that the demand should be presented to and audited and allowed by the board of supervisors.

The San Francisco charter provides that the district attorney of the city and county "shall have all the powers conferred, and shall discharge all the duties imposed upon, the district attorneys of counties by the general laws of the state." (Art. V, chap. III, sec. 2, Stats. 1899, p. 278.) The general law relating to the powers and duties of district attorneys of counties provides that "The following are county charges: . . . 2. The traveling and other personal expenses of the district attorney, incurred in criminal cases arising in the county, . . . and all other expenses necessarily incurred by him in the detection of crime and the prosecution of criminal cases." (Pol. Code, sec. 4307.) This authorizes the district attorney to employ detectives at the expense of the county, when necessary to enable him to ascertain the persons guilty of crime, or to obtain evidence to prove the commission thereof and effectively prosecute the same. This was recognized as the effect of this provision in Humiston v. Shaffer, 145 Cal. 197, [78 P. 651]. It was expressly decided in Langdon v. Koster, 157 Cal. 40, [106 P. 209], in which case it was also held that the provision of the charter above quoted made this provision of the code applicable to the district attorney of the city and county of San Francisco. There can be no doubt that this is the purport and effect of the two provisions.

It is thus established that the district attorney of San Francisco had the power to employ the plaintiff, on behalf of the city and county to do the work which he has done, and that his compensation is a legal charge against the city and county. In case of a similar charge against a county, the general law requires that it shall be settled and allowed by the board of supervisors. (Pol. Code, sec. 4041, subd. 11.) San Francisco, in the matter of the procedure for the allowance of claims against it, and with respect to the authority of officers and boards to settle and allow the same, is not governed by the provisions of the Political Code, but by the city and county charter.

The charter declares that "Except as provided in chapter III of article III of this charter, all demands payable out of the treasury must, before they can be approved by the auditor or paid by the treasurer, be first approved by the board of supervisors." (Art. II, chap. I, sec. 19, Stats. 1899, p. 246.)

Turning to chapter III of article III, we find section 12 thereof as follows:

"Sec. 12. When an officer, legally authorized to employ a person other than one of his deputies or assistants at a stated compensation fixed by law, has employed such person, and in pursuance of such employment such person has rendered the service for which he was employed, such officer shall, at the end of each month, prepare and deliver to the auditor a statement verified by the oath of such officer, showing the case or instance in which such service was performed, for whom performed, the name of the person so employed, by whom the service was performed, the amount of the charge therefor, the time actually employed in performing such service, and the dates of the beginning and ending of the period during which such person was so employed. The auditor shall thereupon examine such statement, and if he finds the same correct, he shall audit and allow the verified demand of such person so employed and performing the service for the sum or sums so earned by him for such service, and the treasurer shall pay such demand so audited and allowed, without further approval, out of the `Unapportioned Fee Fund.'"

This chapter also provides for the audit and allowance of officers' fixed salaries, officers' mileage accounts, certain school demands and compensation of deputies, clerks, assistants or employees in any office or department, by the auditor, without any previous approval and declares (sec. 13) that "all other demands payable out of any funds in the treasury" must be approved by the board of supervisors.

It is clear from these provisions that section 12, above quoted, designates the auditor as the officer upon whom is devolved the duty of auditing demands for compensation for detective service rendered under employment of the district attorney, and that it is not necessary, in such a case, that such demand shall be presented to or approved by the board of supervisors. The express declaration of section 12 is that, if the auditor finds such demand correct, "he shall audit and allow" it, and that thereupon the treasurer shall pay it "without further approval." The approval of the board is therefore dispensed with in the allowance of such claims.

The district attorney comes within the description given in section 12 of persons empowered to employ. He is, as we have seen, "legally authorized to employ a person other than one of his deputies or assistants at a stated compensation"; for example, a detective for special temporary work. And the plaintiff, as clearly, is embraced in the definition of the person who may be the employee. He was not one of the "deputies or assistants at a stated compensation fixed by law," then serving in the district attorney's office.

It is claimed that the punctuation of the opening clause of this section should not be as it appears in the charter, that a comma should be put after the word "person," and also after the word "assistant," making it read thus: "When an officer, legally authorized to employ a person, other than one of his deputies or assistants, at a stated compensation fixed by law, has employed such person." So punctuated, the section would apply only to the employment by the district attorney of persons classed as employees and who were engaged in work or service of a kind for which the regular wages were stated and fixed by law, but who were not his deputies or assistants, and it would not apply to occasional or irregular employments to perform services for which no compensation had been fixed by charter, law or ordinance, such as that in which the plaintiff engaged. Such distortion of the composition of a written law is sometimes indulged where the provision, as officially printed and punctuated, is ambiguous, absurd or inconsistent with the context. Here there is no inconsistency, absurdity or ambiguity. The section proceeds to provide that the verified "statement" to be made by the officer, as a basis for the allowance of the demand of the employee, must specify "the case or instance in which such service was performed." This implies that a special employment of an irregular and casual character, not regulated, as to compensation, by any law, was contemplated by the section. It indicates that the punctuation of the passage in question, as officially printed, was used advisedly, for the very purpose of authorizing the employment of persons temporarily to do special or occasional work in particular cases and emergencies for which no other provision was made. The proposed change would render the subsequent provisions useless. Furthermore, it would make the entire section redundant. The auditing of demands for all ordinary and regular employees is provided for by section 13 of this chapter, which, after declaring that salaries fixed by law, ordinance, or charter may be allowed by the auditor without previous approval, proceeds to say: "Demands payable out of the treasury for salaries, wages or compensation of deputies, clerks, assistants, or employees, in any office or department, must, before they can be audited or paid, be first approved in writing by the officer, board, department or authority under whom, or in which, such demand originated." This, we think, refers to regular employees at fixed wages. Section 12 was obviously intended to cover occasional employments not included in section 13, and for which a standing provision was deemed unnecessary. The suggested change of punctuation would make section 12 inconsistent with itself and, in effect, a repetition of parts of section 13.

It is not necessary to hold that the agreement of the district attorney as to the amount of the daily compensation was conclusive and binding upon the auditor or the city and county. It is not claimed that the agreed compensation was in excess of the reasonable value of the services performed, or of the usual and customary wages therefor. Whether the auditor had discretion to allow only such reasonable value, if the demand exceeds it, is a question not here presented.

Let a writ of mandate issue as prayed for.

Henshaw, J., Lorigan, J., and Melvin, J., concurred.