
    [No. 9,205.
    In Bank.—
    May 27, 1884.]
    THE COUNTY OF SAN DIEGO, Appellant, v. THE CALIFORNIA SOUTHERN PACIFIC R. R. CO., Respondent.
    Delinquent Taxes—Institution as Suit by District Attorney.—The district attorney is not authorized to institute an action for the collection of delinquent taxes before the certification of the delinquent list.
    Appeal from a judgment of the Superior Court of San Diego County.
    The facts are stated in the opinion of the court.
    
      W. J. Hunsacker, Will. M. Smith, and Works & Titus, for Appellant.
    
      M. A Luce, for Respondent.
   The Court.

The taxes became delinquent upon the 26th day of December, 1882, and the five per cent to be collected on the amount then became due. The present action was brought by the district attorney on the 29th of the same month, and before the time fixed by law for the certification of the delinquent list. Before the date last mentioned, the defendant paid to the tax collector of the county the full amount of the taxes, together with five per cent thereon. It is not urged that the tax collector had no authority to receive the money, but the district attorney insists that he is entitled to take a judgment in the name of the county for the sum of ten per centum of the tax. This claim is based upon a provision of a statute (Laws 1869—70, p. 193) which relates to “ fees and salary of the district attorney and reads as follows: “For services rendered in the collection of delinquent taxes .... in each case when the tax exceeds fifteen dollars, ten per centum on the sum recovered and collected, if paid before judgment; and, if not so paid, then fifteen per centum, to be added to and to constitute part of the judgment etc.

Without regard to this or the question as to whether the district attorney was authorized to institute the action without the direction of the board of supervisors, we think he was not authorized to do so before the certification of the delinquent list.

Judgment affirmed.

Thornton, J.,

concurred in the judgment, on the grounds stated in the opinion in the department. (1 West C. Rep. 341.)  