THE PEOPLE OF THE STATE OF CALIFORNIA ex rel. SMITH, District Attorney of Butte County, for the use and benefit of said State and of the County of Butte v. LATTIMORE et als., 19 Cal. 365

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring. This suit is thus brought to recover of the first named defendant and his sureties certain moneys received by him as County Treasurer of Butte county—the complaint claiming a given proportion of those moneys as due the State, and another stated proportion as due the county. The complaint charges that the principal defendant refused to pay these moneys to his successor in office. Whether anything is due, depends upon a question of the amount of commissions the Treasurer was entitled to retain.

It seems that the defendant settled with the Controller of State, and had his claim allowed for commissions, etc., and that no complaint has been made of that settlement for several years. Ho express authority to institute this suit on the part of the State or any of its officers, except the District Attorney bringing this action, has been shown.

If we concede that this suit is properly brought in the name of the people, on the relation of the District Attorney, for the money due the county as well as “ for the money due the State,” and that no authority need be shown from the State or its general officers for the bringing of the suit, still, even with these concessions, it is difficult to hold that this settlement and adjustment of this account, and this long acquiescence on the part of the State Officers, is not, in the absence of any showing of fraud or clear mistake, a good answer to this demand.

If this be not so, it would seem to follow that no officer would ever be safe in making a settlement with the State Controller or Treasurer; for years afterwards, any District Attorney might bring his suit and set aside the settlement, and hold the officer to a resettlement of the matters of the account.

We think this is not admissible; that if the State is satisfied in respect to this matter, the District Attorney should be ; and that it would introduce great confusion to hold that an arbitrary power resided in the District Attorney to unsettle the accounts of a County Treasurer with the State Department, and recover upon the basis of what he may think or show the account, as properly settled, would represent.

It is not, by any means, clear that the account was not properly settled by the Controller ; but we think it better to hold that that Department is intrusted with the office of making these settlements with the County Treasurer, and that when the settlement is once made, it does not rest with the District Attorney to disturb it, at least, without some special showing of facts not presented here. Judgment reversed and cause remanded.