State Ex Rel. Haskell v. Huston , 21 Okla. 782 ( 1908 )

ON REHEARING. We have carefully re-examined the various propositions raised in this case by the respondents in their petition for rehearing; and, after diligent research and investigation, we find that, where it is held that the Attorney General may, independent of express enactment, exercise common-law powers in addition to the duties imposed upon him by statute, it is either in those states derived from the original colonies, where the office of Attorney General existed as at common law, and was continued after the independence of the colonies, such colonies or states, as a rule, creating or continuing the office, using the term as under the common law, or in states where the office was created by the Constitution or legislative enactment, without the duties thereof being defined or referred to. In such cases the courts have held that, where the office of Attorney General was created without reference to the duties thereof, the term was used in its common-law acceptation.

For instance, the Attorney General in his brief cites the case of Hunt, Attorney General, v. Chicago Dummy Railroad Co.,20 Ill. App. 283, affirmed in 121 Ill. 638, 13 N.E. 176. In that state (see Const. 1870, art. 5), the office is created by the organic law, without reference to the duties thereof. In such case we can see how a court could very properly hold that the powers of the Attorney General were such as at common law, supplemented by statute.

Also in the case of People v. Stratton, 25 Cal. 242, it was held that the Attorney General ex officio might, exercise common-law powers in addition to those prescribed by statute. But in the Constitution of 1849, which was then in force, the office of Attorney General is created without reference to his duties. The case of People v. Gold Run Ditch Mining Co.,66 Cal. 138, 4 P. 1152, 56 Am. Rep. 80, is to the same effect. The Constitution of 1879 was then in force, but the office of Attorney General was continued without any reference being made to its duties. The correct rule appears to be that, where the office of Attorney General is created in states where the common law prevails, without any reference to the duties of such office, the word is used with its accepted meaning under the common law, and carries with it such duties and powers as were usually incident to the office of Attorney General in England under the common law, when not locally inapplicable.

The Constitution of Minnesota makes no reference to the duties of the Attorney General (see article 5, Const. 1857), and in that state the courts have held that he may exercise common-law powers.

The case of State of Florida ex rel. Meek, Attorney General,v Gleason, 12 Fla. 212, is a decision rendered by the reconstruction courts, whose decisions have never been regarded in that state, since that period, as authority. However, the Constitution of 1868, which was in force when that decision was rendered, does not prescribe or refer to in any way the duties of the Attorney General.

The Constitution of Nebraska (article 5, Const. 1875), does not attempt, in any way, to prescribe the duties of the Attorney General, but provides that he shall perform such duties as may be required by law. The case of State v. Stein,13 Neb. 530, 14 N.W. 481, is cited in support of the proposition that the Attorney General, in addition to his duties prescribed by statute, may exercise common-law powers. In that case an information in the nature of quo warranto was instituted by a private person in the Supreme Court to oust another from office. The court dismissed the information, because it failed to state facts sufficient to constitute a cause of action, and in passing construed the statute of that state, and declared that the same had not changed the common-law rule, making it the duty of the Attorney General to file the information on his own motion, where the state at large was interested, but had changed it so as to permit prosecuting attorneys to institute such proceedings in cases arising in their respective districts. Under section 1, art. 5, c. 83, p. 596, Compiled Statutes of Nebraska, annotated 1881, which were in force when said decision was rendered, it is provided:

"The Attorney General shall appear for the state, and prosecute and defend all actions and proceedings, civil or criminal, in the Supreme Court, in which the state shall be interested or a party, and shall also, when requested by the Governor, or either branch of the Legislature, appear for the state and prosecute and defend in any other court, or before any officer, any cause or matter civil or criminal, in which the state may be a party, or interested."

This section was adopted in Nebraska in 1869 (Laws 1869 p 165, § 3), and was probably borrowed from the statutes of Kansas. It will be seen that by the statute in Nebraska the Attorney General was empowered to institute such action on his own motion, in the name of the state, in the Supreme Court, and that informations should be filed against any person unlawfully holding or exercising any public office or franchise within that state, or any office in any corporation created by the laws of said state, or when any public officer has done or suffered any act which works a forfeiture of his office, or when any persons act as a corporation within said state without being authorized by law, or if, being incorporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as a corporation, or when they exercise powers not conferred by law, by the prosecuting attorney of the proper county whenever he deems it his duty to do so. Sections 704, 705, art. 23, of the Nebraska Code of Civil Procedure; Compiled Statutes of Nebraska, Annotated 1881, p. 620. It is further provided by section 706 of the Nebraska Civil Code of Procedure (Comp. St. 1881, p. 621), that the county attorney shall file such information, when directed to do so by the Governor, the legislative assembly, or the district court. In the case of State v. Stein, supra, it is said:

"Our statute has not changed the common law in that regard as to the law officer of the state, except that it permits prosecuting attorneys to institute proceedings on cases arising in their respective districts. But where the state at large is interested the Attorney General, as at common law, is the proper party."

The Supreme Court in that state has original jurisdiction in actions in the nature of quo warranto. State ex rel. Valentinev. Griffey, 5 Neb. 161. In the case of State ex rel. Crosby v.Cones, 15 Neb. 444, 19 N.W. 682, it is declared that the Attorney General is the proper officer to institute proceedings in quo warranto in the Supreme Court, and not the district attorney. It nowhere appears that it has ever been held in Nebraska that the Attorney General may exercise common-law powers in addition to those prescribed by statute; the courts holding, however, that the Attorney General was the proper person to institute suits on his own motion, as the law officer of the state, in actions where the state at large was interested in the Supreme Court.

Even if the Attorney General has power as at common law, supplemented by our statute, still in that event the Governor would have the right to direct and control the bringing of suits in the district court by him.

In the case of State v. Southern Pacific Railway Co., 24 Tex. 117, Mr. Justice Roberts, in a very elaborate opinion says:

"In England the King could direct and control the bringing of suits, by his direct control over the officer who might be Attorney General. In this state such direct control, as a legal power, is cut off by the independence of the law officers of the state."

The Constitution of the state of Texas (1845) which was in force when the opinion in the case of State v. Southern PacificRailway Co., supra, was delivered, provided:

"The Attorney General * * * shall represent the state in all suits and pleas in the Supreme Court of the state in which the state may be a party, and shall specially inquire into the charter rights of all private corporations, and from time to time, in the name of the state, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any species of taxes, tolls, freight or wharfage not authorized by law. He shall whenever sufficient cause exists, seek a judicial forfeiture of such charters, unless otherwise expressly directed by law, and give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law. * * *" (Const. 1845, art. 4, § 22).

And this provision is contained in the Constitution of Texas of 1875. In none of the Texas cases is there any intimation that the Attorney General in that state has any authority by virtue of the common law; his duties being prescribed by the Constitution and the statutes. State v. Farmers' Loan TrustCo., 81 Tex. 546, 17 S.W. 60; State v. Moore, 57 Tex. 309;State v. Southern Pacific Railway Co., 24 Tex. 117. In the case of State v. Southern Pacific Railway Co., supra, it was held that the district attorney might institute a suit in the district court to forfeit the charter of a corporation, declaring that it more appropriately fell within the province of the district attorney to prosecute such action, or any other action on the part of the state in the district court, than that of the Attorney General; but the court failed to pass on the question as to whether or not the Attorney General could maintain such action, without express statute authorizing him so to do. At the time the opinions were announced in the cases of State v. SouthernPacific Railway Co., State v. Moore, and State v. Farmers' Loan Trust Co., supra, there was no statute in force in Texas providing that the Attorney General should, when requested by the Governor, appear in behalf of the state and prosecute or defend in any court, or before any officer, in any cause or matter, civil or criminal, in which the state might be a party or interested. His duties were prescribed by the Constitution as supplemented by statute.

In the state of Kansas there are statutes in force relating to the duties of the Attorney General, substantially the same as sections 6567, 6568, 6569, 6570, 6571, 6572, and 6573, Wilson's Rev. Ann. St. Okla. 1903 (sections 6616, 6617, 6618, 6619, 6620, 6621, 6615, Gen. St. Kan. 1889). Section 1289, Wilson's Rev. Ann. St. Okla. 1903, provides that:

"It shall be the duty of the county attorney of the several counties to appear in the district courts of their respective counties, and prosecute and defend, on behalf of the territory [state], or his county, all actions or proceedings, civil and criminal, in which the territory [state] is interested or a party; and whenever the venue is changed in any criminal case, or in any civil action or proceeding in which his county or the territory [state] is interested or a party, it shall be the duty of the county attorney of the county where such indictment is found, or the county interested in such civil action or proceeding, to appear and prosecute such criminal indictment, and to prosecute or defend such civil action or proceeding in the county to which the same may be changed."

Substantially the same section appears as section 1796 of the General Statutes of Kansas of 1889. Section 1798 of the General Statutes of Kansas of 1889 is substantially the same as section 1291 of Wilson's Revised Annotated Statutes of Oklahoma of 1903.

In the year 1885 the Legislature of Kansas, with a view to the more effectual enforcement of the prohibitory law, provided that whenever the county attorney shall be unable, or shall neglect or refuse, to enforce the prohibitory liquor law in his county, it shall be the duty of the Attorney General to enforce the same, and that he and his assistants were authorized to sign, certify, and file all such complaints, informations, petitions, and papers as the county attorney is authorized to sign, verify, or file. Previous to that time it was the undoubted purpose of the lawmakers in the state of Kansas that, except when the Governor or either branch of the Legislature should determine it was necessary, the enforcement of the law and the redress of public wrongs should be left to the local county or district officers, recognizing the force of the doctrine of local self-government. But when the prohibitory law in Kansas was enacted, the difficulty of enforcement by the local county and district officers was made manifest, and it was then by legislative enactment declared to be the duty of the Attorney General to participate in such enforcement.

Sections 95, 96, 97, 98, 99, 100, and 101 of the Compiled Laws of Dakota Territory of 1887 are identical with sections 6567, 6568, 6569, 6570, 6571, 6572, and 6573 of Wilson's Revised Annotated Statutes of Oklahoma of 1903, and were probably transplanted substantially from the state of Kansas to that territory; section 6616 of the General Statutes of Kansas having been enacted by the Legislature of that state on June 12, 1861, about the time that Dakota was organized into a territory. Section 428, Compiled Laws of Dakota Territory of 1887, provides that "it shall be the duty of the district attorney of the several counties to appear in the district courts of their respective counties, and prosecute and defend on behalf of the territory, or his county, all actions or proceedings, civil and criminal, in which the territory or county is interested or a party; and whenever the venue is changed in any criminal case, or in any civil action or proceeding in which the county or the territory is interested or a party, it shall be the duty of the district attorney of the county where such indictment is found, or the county interested in such civil action or proceeding, to appear and prosecute such indictment, and to prosecute or defend such civil action or proceeding in the county to which the same may be changed." And sections 429, 430, 434, 435, 436, 437, and 438 are identically the same as sections 1290, 1291, 1293, 1294, 1295, 1296, and 1297 of Wilson's Revised Annotated Statutes of Oklahoma of 1903, except that in the former the words "district attorney" appear where the words "county attorney" appear in the latter.

In the case of State v. Bowles, 70 Kan. 826, 79 P. 726, 69 L. R. A. 176, Mr. Justice Burch, in delivering the opinion of that court, commented on the reason for extending the authority of the chief law officer of the state, to wit, the Attorney General, to every part of its territory, if the chief executive, or other branch of the Legislature, should determine it was necessary, and said:

"The experience of the Legislature during the territorial times had taught them the necessity of a state government equipped with sufficient power to protect public rights and redress public injuries throughout the entire state, independent of the attitude of local authorities, who might be indifferent, incapable, or even antagonistic."

He further added:

"When directed by the Governor or either branch of the Legislature to appear and prosecute criminal proceedings in any county, he [the Attorney General] becomes the prosecuting attorney of that county in those proceedings, and has all the rights that any prosecuting officer there may have, including those of appearing before the grand jury, signing indictments, and pursuing cases to final determination."

It is apparent, when we look at the history of such provisions, whence they came, and their practical application, that it was originally the intention to leave the administration of the government in the hands of the people, as near as practicable; that the law should be enforced by the officers nearest to the people and directly responsible to such county or district. When experience in Kansas showed that exigencies might arise requiring different application, provision was made by statute, not by judicial enactment, that the Attorney General should, when requested by the Governor or either branch of the Legislature, appear and prosecute, or defend, any action or proceedings, civil or criminal, in which the state should be interested or a party. Hence, we are confirmed in our previous conclusion that it was not the intention of the lawmakers that the Attorney General should have control of litigation in which the state was interested or a party, either civil or criminal, in the district courts of the state, except when requested by the Governor, or either branch of the Legislature.

The question involved before us is simply one of law, not of policy. It is our duty to declare the law as we find it, whether or not we agree as to its policies or purposes. If the law does not meet the approval of the people, they alone, either through the Legislature or the initiative, have the power to change it, not the courts. Judicial legislation is not in accord with popular institutions. Everything in nature legislative, when not incidental to judicial administration, is by express organic provision denied to the judiciary. Section 1, art. 4 (Bunn's Ed.) § 50, Const.; In re Petition Com'rsPontotoc County (not yet officially reported) 98 P. 557. However, in our judgment, the county attorney of any county, where proper service may be had in such county, has the right to institute such an action in the name of the state, on his relation, as was begun in the Logan county district court in the name of the state, on the relation of the Attorney General, to have the charter of the Prairie Oil Gas Company, canceled, which action on the part of such county attorney would neither be subject to the control of the Governor, nor to be dismissed at his discretion. The statutes heretofore referred to appear to make the Attorney General the legal adviser of the state officers, and the proper person to prosecute and defend actions in the Supreme Court in which the state is a party or interested, and, when directed by the Governor or either branch of the Legislature, to appear and prosecute or defend any action, civil or criminal, in any court, or before any officer, in which the state is a party or interested, and that it is the duty of the county attorney, except as otherwise provided, to prosecute and defend all actions, both civil and criminal, in the district or county courts, in which the state is a party or interested.

As to whether or not the rights of the people of the commonwealth are properly safeguarded in lodging this power in the local prosecuting attorneys, to bring such action in the district, or other local courts, except when the Attorney General is directed so to do by the Governor, it is not for as to determine. This is a legislative power and policy, and not within the province of the judiciary.

The petition for rehearing is denied.

Williams, C. J., and Dunn, J., Concur; Kane and Hayes, JJ., concur in the conclusion.