Allen v. Payne ( 1934 )

LANGDON, J.

This is a petition for a writ of mandate to compel respondent, Auditor of the County of Los Angeles, to approve a claim for compensation for services. The board of supervisors of said county appropriated a sum of money for the specific purpose of employment of special investigators by the grand jury. Acting on information given by one of its members, the grand jury employed petitioner at ten dollars a day for one day, to investigate the alleged commission of a certain crime. Petitioner performed the services and presented his claim to the board of supervisors. This body approved it, but respondent auditor did not.

The facts are undisputed, and the only question is one of law, whether the grand jury has the power to employ persons to investigate crime, and make the compensation of the investigators a charge upon the county. Petitioner contends that the power exists by implication from the character of our grand jury, as provided for in the Constitution. It is argued that since the nature of the grand jury is not specifically defined in the Constitution, it is the body as known to the common law, with the same powers, including the power to institute its own investigations. (See Hale v. Henkel, 201 U. S. 43 [26 Sup. Ct. 370, 50 L. Ed. 652].) Section 922 of the Penal Code, also relied upon, provides: “If a member of the grand jury knows, or has reason to believe, that a public offense, triable within the county, has been committed, he must declare the same to his fellow-jurors, who must thereupon investigate the same.”

From the time of the adoption of our Constitution to the present, the accepted practice has been to leave the detection of crime in the hands of sheriffs and district attorneys, and in our opinion the departure from that practice finds no support in authority or legislative policy. The ferreting out of evidence of crime is a statutory duty expressly imposed upon certain officers, having the equipment and qualified personnel to perform it. This being so, there is no reason to resort to the very vague justification of “inherent” or “implied” powers. The existence of the power in other competent agencies tends to negative an implied power in the grand jury, which is obviously not equipped to exercise it. The grand jury’s function of “investigating” crime may be readily distinguished from detection.

This conclusion is reinforced by an examination of the legislative history of the grand jury in this state, in the light of established rules of statutory construction. That examination reveals a practice of defining and delimiting its powers in relation to employment, by express statutory grant. In the Statutes of 1871-72, page 540, is found an express grant of power to the grand jury to employ and compensate interpreters; in 1880, Penal Code section 928 first authorized the employment of auditors; in 1897, section 925 of said code was amended to provide for a stenographic reporter when requested by the district attorney; and in 1927, section 925 was amended to permit the attorney-general, upon request by the grand jury, to employ special counsel and investigators. It seems clear from these instances that the legislature has considered the employment of • persons by the grand jury a matter to be governed by statute. In none of these cases would there have been any necessity for a grant of authority if there existed the implied power which is claimed for the body by petitioner.

There seems to be no case directly in point, but several expressions in the decisions support the views above stated. (Woody v. Peairs, 35 Cal. App. 553 [170 Pac. 660] ; Burns Int. Detective Agency v. Doyle, 46 Nev. 91 [208 Pac. 427, 26 A. L. R. 600]; see Dession & Cohen, The Inquisitorial Functions of Grand Juries, 41 Yale L. J. 686.)

It follows that petitioner’s claim is improper, and that respondent was justified in refusing to approve the same.

The alternative writ is discharged and the peremptory writ denied.

Seawell, J., Curtis, J., Shenk, J., and Spence, J., pro tern., concurred.