Sloane

A criminal offense, claimed to have been committed by the district attorney of the county of San Diego, was under investigation by the grand jury of the county, whereupon the attorney-general “appointed and em ployed” the petitioner in this proceeding “to represent the people and the prosecution as special counsel ... in all . . . matters pending in the courts of San Diego county in which the present district attorney of San Diego county is disqualified.” The proceedings before the grand jury terminated in the indictment of the district attorney. Under a recital that “it is necessary, in order to provide funds for the further necessary investigation and procuring evidence for the trial” of the charges against the district attorney, “to make use of a portion of the special fund provided and set apart by the Board of Supervisors” of the county “by sec. 4308 of Political Code for the use of the district attorney in prosecuting such investigations,” petitioner then made requisition upon the county auditor “to draw a warrant in my favor upon said fund for such use in the sum of one thousand dollars.” The county auditor declined to honor the requisition, whereupon petitioner presented…

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 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 exprossio 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…

I concur in the opinion, except that I must withhold, at this time, assent to the language which declares that courts would disregard restrictive provisions of constitutions which to the courts might seem to be at variance with the purposes of government. Restrictive provisions of state constitutions which in operation should fail to accord to citizens equal protection of the law, or to afford a republican form of government, or should be destructive of the purposes of a republican form of government, would undoubtedly fail by reason of violating section 1 of article XIV or section 4 of article IV of the United States constitution. But the courts of this country derive their authority and their being from constitutions, which are expressions of the will of the people in whom rests, ultimately, the entire power of government. And as water can rise no higher than its source, so the courts cannot be superior to their creator.

The authorities cited in support of this enunciation in the main opinion involve legislative action. The legislature owes its being to the constitution in the same manner as do the courts. Legislative power is restrained by constitutional limitations. As was…