Gendron

We are called upon to adjudge the constitutionality of Government Code section 28135 insofar as it prohibits the District Attorney of Madera County from engaging in the private practice of law and to determine, if he does so, whether the county may lawfully withhold his salary. We shall point out why we have concluded that Government Code section 28135 is valid, but that the county should not withhold the district attorney’s salary because of his failure to observe the section. We likewise set forth our reasons for holding that the action has not become moot.

The County of Madera brought this action for declaratory relief against the District Attorney of Madera County for a determination of whether it could legally pay the defendant his salary in view of the fact that he allegedly engaged in the private practice of law contrary to the provisions of the above mentioned section 28135 of the Government Code. Defendant admitted in his answer that he did thus engage in private practice but filed a cross-complaint which sought a declaration of the unconstitutionality of section 28135 by reason of section 11 of article I, section 25 of article IV and section 5 of article XI of the…