Sacramento daily record-union., 1882-04-25
DECISION IN TIE RAILROAD CASE.

5
yesterday rendered the following decision
denying the motion TO set aside the recent
compromise:
| This is civil action, commenced by the County
| OF Sacramento as plaintiff against the Central Pa
| cific Railroad Compsny, defendant, to recover the
| sum of SO 500 II, alleged to be due from SAID de
| fendant for state aud county taxes for the hsca
| year lSS1-2.
The authority for the commencement of the action
is found in an Act Of the Legislature entitled Al
Act prescribing the form OF complaint ID actions u
| recover delinquent taxes, and to authorize thS
| bringing OF suits therefor" found at page l3o
statutes of 1850. This Act prescribes the lorai O
complaint to be used in actions to recover deiihqeh
taxes and provides that any county may sue III III
/; own name for the recovery of delinquent taxes
whether the same be for county and State pur
poses or either of them" The prescribed form o.
complaint requires the amount due for State ana o
county purposes, to be separately stated, with
| PRAYER for Judgment in aggregate sum. Sector
4046 of the Political Code defines the powers and
jurisdiction Of the Boards OF Supervisors IN tneii
respective counties and, in the fifteenth SUBDIVISION
| of said section, authorizes them Ito direct and
control the prosecution and defense OF all suits tc
which the county is party" In this case the
county OF Sacramento is the party plaintiff and the
Board of Supervisors of said county have the legal
power to direct and control the prosecution OF the
suit, unless there is superior power or author
| ity conferred by law upon some other oiflcer OF
| Beard, by which the management OF the case may
4
| This action commenced in pursuance OF an
| order made by the Board oil Supervisors OF Sacra.
mento county by the filing OF a complaint in legal
| FORM on the 18th day of March, 1882, which CON-
plant was sgr ed by "Henry L. Buckley, District
Attorney for the county OF Sacramento and attorney
| for plaintiff"
On the 18th day of the same month summons was
| issued, which was, on the 20th served in the city
| and county of San Francisco, and on the 24th re
| turned and filed.
Upon the last named date the defendant, through
its attorney, filed ia the case an offer in writing
| to allow judgment to be taken against it for the
of ST. 097 2s and costs, which offer was served
upon the attorney for plaintiff
Upon the same day Mr.. Buckley, after consulta-
ton with the Board of Supervisors, and in accord
with their instruction, filed in writing ac-
ceptance of said offer, accompanied by an affidavit,
| and thereupon, and upon said oath day OF March,
judgment was'in due form entered by the Clerk for
| the sum named in the offer and costs.
Section 997 of the Code of Civil Procedure OF this
| State authorizes judgment to be entered in this
manner and independent of all questions OF fraud,
and the constitutional power to compromise de-
mand for taxes, the proceedings herein had seem to
| be regular and in legal form.
| After the judgment had been entered up the de-
| fendant pail the me, and plaintiffs attorney en-
| tered satisfaction thereof.
Afterwards, and on the 1st day OF April, 1882, a
| notice in writing, signed A. l.. Hart, Attorney
General served upon Mr.. Buckley and Judge
Mcfarland, as attorneys for plaintiff and defendant
entitled in this action, and containing the follow
ETC. etc, :" will move the above entitled Court to
set aside the satisfaction Of judgment in the above
entitled action, and to vacate the judgment entered
in said action on March "a, 1882 and to strike from
the files the acceptance of defendants offer to
allow judgment to be taken against it. 81 med by
Henry L. Buckley, attorney for plaintiff in said
action. Said motion will be made upon the ground
that the proceedings referred to are without any
authority OF law, and are fraud upon the rights OF
plaintiff and OF the people of the state of Califor-
MIA in said action"
This motion came on for hearing and after elab-
crate argument was submitted, and it is with this
| motion only that this decision must deal.
When the motion was reached upon the law cal
| endar and called, the attorney for defendant
formally objected to the Courts entertaining or
hearing it. upon the ground that the notice had been
| given and the motion was sought to be made by
person having no authority to appear in the case
not being attorney for either party and not hav-
ing any connection with, or relation to- the case
nor any official or other right to interfere. By
agreement this objection argued in connection
with the merits and is to be considered in passing
upon the motion In reaching a conclusion upon
this point investigation into the powers duties
ana authority of the Attorney General and District
Attorneys becomes prime necessity. This motion
is made by, and solely on behalf of, the Attorney
General. II he has the right to make this motion,
then it will be the duty of the Court to consider it
upon the merits while if he has legal authority
to interpose investigation into the merits of the
controversy would be waste OF time.
The duties Of the Attorney General specified
and enume ated in Section 40 of the Political
Code, and paragraphs five and seven of
that section cited authorizing his
interposltIon in this e. These paragraphs read
"5. TO exercise supervisory powers over District
Attorneys in all matters pertaining tothe duties
OF their offices, and from time to time require OF
them reports as to the condition of public business
intrusted to their charge - az When
required by the public vice, or directed by the
Governor, to repair to any county in the State and
assist the District Attorney thereof in the discharge
of his duties"
In view of these provisions the Attorney General
considers it his official duty to interfere in what he
deems an Illegal proceeding by the District Attorney
OF this county, and assume control Of this case.
Assuming that the acts of Mr.. Buckley in conduct
ing this action done in official capacity as
the District Attorney OF this county it might be
somewhat questionable whether the taking of the
case absolutely out Of his hands and suppanting
him attorney for the plaintiff would come within
the range OF exercising supervisory powers over
him; and it certainly could not be considered as
| OF his duties To supervise is to inspect.
| to oversee, to superintend, etc, and not
| to suppant or supersede. And perhaps
this supervisory power would enable the Attorney
General, upon the disobedience Of his instructions
| on the part of the District Attorney, to proceed
against him for official misconduct, and in proper
case to apply to Court for substitution attor-
| ney but assuredly it does not authorize him un-
tremendously to assume charge OF and totally
disregard the District Attorney.
But now let US view the case in another aspect.
| The foregoing observations based upon the
assumption that Mr. Buckley, in bringing this suit,
acted in his official capacity as District Attorney,
but let US see if this assumption be correct The
duties Cf District Attorney are laid down in Section
| 1856 of the Political Code among which will be
found that OF defending all suits brought against
the state or his county; but he is nowhere CON-
manded to prosecute any civil sui: except 4" all re-
conzances forfeited in the Courts Of record and all
actions for the recovery Of debts fnes penalties and
| forfeitures accruing to the State or his coun-
J ~ he xDr1f oh il fEp lv rtniDt
| by any Interpretation, could include action
| to enforce the payment OF taxes, and in
| the case OF Perry Washburn, pol California
Reports Chief Justice Field, speaking the mind OF
| the Supreme Court. says: ' No one would pretend
that an Act providing for the collection Of debts
would include, by force merely OF the term debts,
the collection of taxes also"
No law has been cited making ii the duty Of the
District Attorney to eoute actions for the colec
tioR OF taxes. My efforts to find any such law have
proven unavailing, and it may be assumed that
| exists.
1t therefore results that Mr. Buckley acted merely
as attorney for the plaintiff, not District Attor-
ney and represented his client in precisely the
manner as any other attorney " no might have been
| employed would have represented it and it would
scarcely be eontended that If some other attorney
had been managing this case the Attorney General,
whose general duty it is to guard the interests Of the
State or the District Attorney, who usually repre-.
sents the county, any taxpayer locking sfter his
individual interests, could have come int1 Court
and successfully demanded the right 10 make this
motion.
| These considerations force upon my mind the con-
cluson that the defendants objection to the right
| of the Attorney General to make his notion
was well taken, aud that the motion should not
| have been entertained, and must be denied. This
conclusion renders 1t unnecessary, and perhaps
improper, to comment upon the merits Of the mo-
tion TO express any opinion as to the Legality OF
! the proceedings had however, the Suggestion may
be ventured that II the proceedings resulting in a
Judgment for an amount less than the amount OF
taxes actually due not sanctioned by law either
because demand for taxes cannot be Compromise d,
or for any other reason in law in fact the whole
proceeding may be dsregarded, and the Code affords
ample RENE dy ia the shape Of action to recover
the taxes. tSee Subdivision IL Of Section 49, Po
lilical COde)
An order will be entered denying the motion.
benson, Judge.
Attorney. General Hart, Immediately upon
the rendering of the decision, fled bill Of
exceptions.
METROPOLITAN THEArER.-Milton Mobiles
apd his company of comedians, including
Dollie Nobles, Es.elle Mortimer, Alonzo
Schwartz and others, will perform at the
Metropolitan Theater on Friday and Sat.
urday evenings and Saturdays matinee. Fri
day evening and Saturday matinee they pro-
duce the American comedy. in four acts,
entitled "Intsrviews;" Saturday evening the
American melodraoa callai the Z" Pkd nix "