I dissent. I have no doubt that the district attorney of San Francisco had the power to employ plaintiff on behalf of the city and county of San Francisco, to do the work which he has done, and that his compensation is a legal charge against the city and county, and concur in what is said in the opinion on that point.
I cannot consent, however, to the construction given by the opinion to section 12 of chapter III of article III of the charter of the city and county of San Francisco, and am satisfied that the auditor could not legally approve plaintiff's claim until the same had been approved by the board of supervisors, the matter being governed by section 19 of chapter I of article II of the charter providing 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." The construction given to section 12 of chapter III of article III of the charter brings about either one or the other of two results, each of which is entirely different from anything we have heretofore seen in the matter of allowance and payment of claims against a county or municipality. One of these is that any officer legally authorized to employ a person to perform services for which there is no stated compensation fixed by law of any kind, may himself finally and conclusively fix the amount of compensation which the city and county of San Francisco is to pay for the service — in other words, with reference to this particular case, *Page 101 the district attorney of the city and county of San Francisco may employ a detective upon any terms as to compensation that he may see fit, and the city and county must pay the amount fixed by that officer. I do not think that any officer of a county or municipality has ever heretofore been given by law any such power over the funds of the county or municipality, and it certainly would require plain and unambiguous language to indicate an intent to confer any such power. The other result is that the auditor has supervisory power in regard to the compensation fixed by the district attorney — the right to determine what is a fair and reasonable compensation for the services shown to be performed, and to reduce the amount allowed by the district attorney, if he concludes that too much has been allowed. The result would be that as to the kind of claims under consideration the auditor would be invested with the power of allowance of claims ordinarily exercised by boards of supervisors, a power which is entirely foreign to any proper conception of the duties of an "auditor," under our system of county and municipal government. The opinion does not decide whether the determination by the district attorney as to the amount of allowance is conclusive and binding upon the auditor. I think that it is clear enough that as to such claims as are referred to by the section under consideration, the auditor is without any discretionary power as to the amount. If he finds the "statement" of the employing officer "correct," "he shall audit and allow" the demand.
The conclusion reached by the opinion on this point, producing a result that to my mind could not have been contemplated by the framers of the charter, and that is so utterly inconsistent with the ordinary system, is really based on the fact that there is no comma after the words "deputies or assistants." If there were a comma in that place, there could be no question in the mind of any one as to the proper construction. The section would then read: "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," etc. So written it would be perfectly plain and understandable, and in no way inconsistent with the general practice. The compensation of the person employed being fixed by the law, there would be no necessity *Page 102 for any fixing of the same by the body ordinarily invested with the power of allowance of claims, and the certificate or statement of the officer "legally authorized" to employ the person would fully suffice as evidence of the facts as to service, etc. I have no hesitation in concluding that the section may fairly be so read even though the comma is not there, and that, in view of what has already been said, it should be so read.
Certainly a writ of mandate should not issue in this proceeding in view of the allegations of the answer, which are in no way disputed. It is alleged therein, in response to the alternative writ of mandate heretofore issued, that subsequent to the filing of the petition the claim of petitioner was allowed by the board of supervisors, and that thereupon respondent did approve such claim, thus doing everything asked by the petition.
Sloss, J., concurred.
Rehearing denied.
Beatty, C.J., dissented from the order denying a rehearing, and filed the following opinion on September 23, 1913: