Tracy v. Fresno County

• Decision Date: 04 May 1954
• Citation: 125 Cal.App.2d 52,270 P.2d 57
• Court: California Court of Appeals Court of Appeals
• Parties: TRACY v. FRESNO COUNTY. Civ. 4690.

Page 57

270 P.2d 57

125 Cal.App.2d 52

TRACY v. FRESNO COUNTY.

Civ. 4690.

District Court of Appeal, Fourth District, California.

May 4, 1954.

Hearing Denied June 30, 1954.

Meux & Gallagher, Fresno, Dinkelspiel & Dinkelspiel, San Francisco, for appellant.

Robert M. Wash, County Counsel, Maurice E. Smith, Asst. County Counsel, Fresno, for respondent.

GRIFFIN, Justice.

This is an action by plaintiff to recover from the County of Fresno attorneys' fees and costs in the sum of $13,413.39, claimed to have been incurred by plaintiff in the successful defense of a Grand Jury accusation charging him with willful misconduct and seeking his removal from the office of sheriff of Fresno County.

The question here presented is the construction of section 2001 of the Government Code, as applied to the facts pleaded in a second amended complaint which are, generally speaking, that plaintiff was the sheriff of that county and on April 30, 1952, the Grand Jury filed an accusation against him charging him with seven counts of willful misconduct. It charged generally that as such sheriff he had knowledge that prostitution and gambling was being practiced in an open, notorious and public manner in certain described parts of the county, and that he willfully, intentionally, and unlawfully failed, refused and neglected to investigate and arrest persons who he knew were practicing prostitution and gambling at said locations, and that he obstructed his deputies from making arrests of such persons. Count 7 charges that the sheriff intentionally appointed a named undersheriff who he knew was and is corrupt and incompetent to perform such duties and accordingly all the acts charged constituted willful misconduct, and the sheriff's removal from office on these grounds was sought. The result of a jury trial was in favor of the accused.

It is then alleged that the district attorney represented the people in said proceeding and that the sheriff requested the county counsel of Fresno County to represent him in defending him against such accusations; that plaintiff acted in good faith and without malice, and that the county counsel 'refused' to act and 'advised plaintiff to employ counsel' and 'that plaintiff thereupon made provision for the employment of private counsel to represent him in defending said accusation'; that he did so and incurred charges for legal fees and costs in the sum of $13,413.39; that on March 18, 1953, plaintiff presented to the Board of Supervisors of Fresno County his claim for said amount and that it was rejected. Judgment is sought in said amount.

Both a general and a special demurrer were filed. The demurrer setting forth the ground that the complaint did not state a cause of action was sustained. The special demurrer was overruled except as to the ground that the amended complaint was ambiguous, and as to that ground it was sustained because it did not appear therefrom how or in what manner plaintiff made provision for the employment of private counsel to represent him. Plaintiff was given ten days to amend. He failed to do so and judgment was ordered in favor of defendant, from which judgment plaintiff appealed.

Section 2001 of the Government Code now reads:

'Suit against State, district, county or city officer. (a) (Duty of State, etc. attorney to act as counsel in defense.) Whenever any action or proceeding, including a taxpayer's suit, is brought against any officer in his official or individual capacity, or both, of the State or of any district, county, or city

'(1) On account of injuries to persons or property resulting from the dangerous or defective condition of any public property or

'(2) On account of any action taken or work done by him in his official capacity, in good faith and without malice, or

'(b) Whenever any action or proceeding is brought against any officer, in his official or individual capacity, or both, including officers as defined in Article 2, of the State or of any school district, county or municipality on account of injuries to persons or property, alleged to have been received as a result of

'(1) The negligence or carelessness of such officer occurring during the course of his service or employment, or

'(2) The dangerous or defective condition of any public property, alleged to be due to the negligence or carelessness of such officer, it is the duty of the attorney for the State, district, county, municipality, or other public or quasi-public corporation, as the case may be, to act as counsel in defense of such suit, unless provision has been made for the employment of other counsel in connection therewith.

'(Fees and expenses as charge against State, etc.) In such event the fees, cost and expenses involved in a suit referred to in subdivisions (a) and (b) are a lawful charge against the State, school district, county or municipality, as the case may be.'

Counsel for plaintiff argues that when literally interpreted, the accusation of the Grand Jury was an action or proceeding within the meaning of the first paragraph of that section, citing 1 C.J.S., Actions § 1, page 937, and Sections 22 and 23 of the Code of Civil Procedure; that it was brought against the sheriff on account of 'action taken or work done by him in his official capacity'; that such alleged misconduct is based on action and not nonaction, whether it constitutes malfeasance, misfeasance or nonfeasance in office, citing People v. Harby, 51 Cal.App.2d 759, 767, 125 P.2d 874; that the actions taken by the sheriff were in good faith and without malice, as established by the result of the verdict; that it was the duty of the county counsel to act as counsel in defense of such suit; that since he refused to act and advised plaintiff to obtain other counsel in connection therewith, plaintiff was authorized to employ other counsel; that accordingly, under the last paragraph of that section, the fees, costs and expenses involved were lawful charges against the county. The argument is used that public interest is involved in any proceeding brought to remove a public official from office; that faithful public officers should be protected from unfounded accusations based on honest action taken by them in good faith and without malice; that if such public officer be wrongfully charged he should be defended in the public interest, because otherwise a public official, improperly charged, could be hounded out of office by unfounded charges brought against him requiring him to expend enormous funds for counsel fees and court costs in defending himself, and that for this reason section 2001, supra, was amended to so provide; that any decrease in the potential liability of an official will increase the willingness of competent people to assume the risk of office and an expenditure to that end is for a public purpose, and that similar statutes so providing have been held constitutional, citing People v. Standard Accident Insurance Co., 42 Cal.App.2d 409, 413, 108 P.2d 923; 67 C.J.S., Officers, § 91, page 330; Board of Com'rs of Natrona County v. Casper National Bank, 56 Wyo. 132, 105 P.2d 578, 130 A.L.R. 736.

The legislative history of that section shows that it was based on the Statutes of 1919, chapter 360, as amended by Stats. 1931, chapter 1168, and Stats. 1933, chapter 807. It then applied only to suits for damages on account of injury to persons or property resulting from the dangerous or defective condition of any public property on account of any action or work done by him in his official capacity. Under these circumstances it was the duty of the attorney for the county to act as counsel in defense of such suit 'unless lawful provision has been made for the employment of other counsel in connection therewith'. Under such circumstances the 'fees and expenses involved * * * are a lawful charge' against the county. In all of these statutes, that portion relating to the duties of counsel now found in subdivision b(2) of the section was not segregated from and was obviously applicable to the entire section. Upon codification of the act in 1943, it was divided into sections and subdivisions, substantially as it is now found. In 1951, Stats. 1951, chapter 1087, § 1, section 2001 was amended to read as above quoted, to eliminate the words 'suit for damages' and substitute the words 'any action or proceeding, including a taxpayer's suit'.

It does not appear to us that this change clearly indicated a legislative intent to so radically enlarge and change the purpose and scope of the act as to include the costs of defense of a criminal action or of a Grand Jury accusation, which is criminal in nature, instituted by a body politic in the name of the People of the State of California which, in effect would call upon the district attorney to prosecute the action and the county counsel to defend the action at the county's expense. It does not appear to us that the legislature intended by the amendment of that section in 1951 that a mere claimed refusal on the part of the district attorney or county counsel and advice to the county official to obtain private counsel to represent him, is sufficient to authorize the county official to employ such private counsel, at any price agreed upon by such county official, without any previous authorization obtained from the Board of Supervisors on behalf of the county and against whom the claim must be made, or without any authorization by some officer authorized by it so to act, particularly where the question of the good faith and lack of malice on the part of the county official must be first ascertained by someone before the district attorney or county counsel is authorized to act in any event.

This conclusion is supported by a more careful examination and comparison of the act as it previously existed with its provisions as presently amended. It affirmatively appears that, under the original section, before the county official would be entitled to be represented by the...