I concur in the conclusion announced in the foregoing opinion. As to whether or not a restrictive provision contained in a constitution is void and to be disregarded by the courts if it would divest the *Page 613 government of one of its inherent powers, I express no opinion, for, to my mind, that question is not one whose disposition is necessary to a decision of the instant case.
The status of the special prosecutor appointed by the attorney-general is, I think, that of an assistant to the last-named officer. The mere fact that a special prosecutor appointed under section 472 of the Political Code is not enumerated among those members of the attorney-general's office who are designated as "officers" does not preclude this conclusion, as suggested by counsel for the respondent, under the rule expressio unius est exclusio alterius, since the special prosecutor is in certain respects in an entirely different class from those enumerated on account of his temporary tenure and the exceptional occasion for the use of his services. The conduct of the prosecution of the district attorney of San Diego County in this instance constitutes the exercise of a state function, and the discharge of a duty of the state government. It is one which is particularly committed to the attorney-general. (Subd. 5, sec. 407, Pol. Code.) Also, it must be conceded that in this prosecution the petitioner was engaged in the performance of duties and functions and the exercise of powers of a public officer, which in itself strongly indicates that he occupied the same status. (Coulter v. Pool, 187 Cal. 181 [201 P. 120].) That the attorney-general might personally have taken charge of this prosecution, I have no doubt. Had he done so no question could have been raised as to his acting in an official capacity, nor of his having all of the authority of the district attorney of San Diego County in the performance of the duties and the exercise of the powers of that office. While so conducting such prosecution to the exclusion of the incumbent, instead of doing this in person, the attorney-general saw fit to appoint the petitioner as his representative and assistant, and in doing so conferred upon the latter all of the jurisdiction of the office which he represented.
Further, I agree with the preceding opinion in holding that even though it be conceded (which of course it is not) that the special prosecutor is to be so classed as to his status as to be within the letter of section 13, article XI, of the constitution, he is not within the spirit of that *Page 614 provision, and hence it cannot be used to bar the conclusion reached herein. It is contrary to the spirit of this section to apply it to one performing the official duties of a duly constituted office while so acting under legal authorization of the holder of such office.