The opinion
CARTER, J.
I dissent.
The majority opinion holds that a county counsel (the same rule would apply to the district attorney if there were no county counsel) is not liable to the county for failure to take action for the recovery of county funds allegedly illegally paid to a third person, a county employee in this case. I assume, for the purposes of this dissent, as does the majority opinion, that the funds were illegally expended. The majority bases its conclusion on two grounds: (1) That it rests wholly within the discretion of the county counsel as to whether he will prosecute an action for the recovery of such funds, *680 and hence, he cannot be liable under any circumstances; (2) “public welfare” requires that he be not liable by analogy to the cases (White v. Towers, 37 Cal.2d 727 [ 235 P.2d 209 , 28 A.L.R.2d 636]; Coverstone v. Davies, 38 Cal.2d 315 [ 239 P.2d 876 ]; Turpen v. Booth, 56 Cal. 65 [ 38 Am.Rep. 48 ] ; Downer v. Lent, 6 Cal. 94 [95 Am.Dec. 489]; Norton v. Hoffmann, 34 Cal.App.2d 189 [ 93 P.2d 250 ]; White v. Brinkman, 23 Cal.App.2d 307 [ 73 P.2d 254 ]) holding that public welfare requires freedom on the part of certain officers in the performance of their duties from possible liability to third persons who are injured by their action or nonaction; and that the public’s interest in having them fearlessly perform their duties outweighs the injury to third persons.
The first ground is contrary to the holding of this court in Board of Supervisors v. Simpson, 36 Cal.2d 671 [ 227 P.2d 14 ]. In that case the question was whether the district attorney could be compelled by mandamus to prosecute an action to abate a public nuisance. We held that while ordinarily a district attorney could not be compelled to prosecute a criminal case, because, whether or not he prosecuted it rested in his discretion, but that a mandatory duty was imposed upon him to abate a nuisance and he had no discretion in the matter. We said: “As pointed out above, the district attorney must or shall bring an action to abate a public nuisance when so directed by the board of supervisors. (Code Civ Proc., §731, supra; Gov. Code, §26528.) ‘Shall’ is mandatory (Gov. Code, § 14), and certainly ‘must’ is also. The writ of mandamus issues ‘... to compel the performance of an act which the law specially enjoins, as a duty resulting from an office . . .’ (Code Civ. Proc., § 1085.) The statutes (Code Civ. Proc., §731; Gov. Code, § 26528) specifically ‘enjoin’ upon the district attorney ‘as a duty resulting from (his) office’ the bringing of actions to abate public nuisances when directed by the board of supervisors.” (Emphasis added.) Similarly, in the case at bar, section 26525 of the Government Code provides that if county money is illegally expended the district attorney “shall” (emphasis added) institute suit to recover it. The duty is mandatory. He has no discretion in the matter. Even if there is some discretion it would be only in respect to the facts of the case—whether they were such as to show an illegal expenditure. The plaintiff in this action alleged that he gave all the facts to the county counsel, and as far as appears, the county counsel arbitrarily refused to bring an action to recover the illegal *681 payments; his refusal was not an exercise by him of his discretion on the facts, but a failure to perform his official duty.
Reliance is placed upon Boyne v. Ryan, 100 Cal. 265 [ 34 P. 707 ], as showing the county counsel had discretion in the matter. It is not in harmony with the Simpson case and moreover the court said that if the district attorney “wilfully” refused to prosecute the action he could be proceeded against for malfeasance or nonfeasance in office. If that is true, certainly he should be liable to the county for his conduct.
I cannot agree with the second ground. I reiterate the position I took in my dissents in White v. Towers, supra, 37 Cal.2d 727 , and Coverstone v. Davies, supra, 38 Cal.2d 315 , that public office holding should not be a cloak immunizing the officer from liability for his wrongful acts. In addition to that, however, the rule of those cases cannot apply to the case at bar. In those cases, according to the majority, the public welfare was preserved by enabling the officers to perform more effectively their public functions, and to achieve that purpose they should be free from liability to third persons injured in the course of the performance of official duty; that the public welfare so preserved was of such superior importance that the rights of the injured persons must give way. In the case at bar, however, no such situation exists. Here it is obvious that the public interest would be preserved by recovering the county funds illegally spent, as opposed, at the most, to the public interest achieved in fearless failure of the county counsel to perform his official duty by refusing to take the necessary action to protect the public interest. In fact there is no public interest achieved in having official duty performed when such performance consists of a refusal or failure to bring an action to recover such funds. The only way to preserve the public interest here is by the prosecution of such an action. In short, it cannot logically be said that the public interest is preserved by the failure of public officials to perform their official duty. Therefore, the analogy between this case and the cited cases completely fails. Indeed, under the facts here alleged, the public interest requires that the county counsel be held liable for failure to perform his official duty in prosecuting an action for the recovery of the funds allegedly illegally expended.
I would reverse the judgment.