Greaves v. Hinds County , 166 Miss. 89 ( 1933 )

It is true, as stated in the majority opinion, that the attorney-general approved these allowances, but it is also true that they were first made by the board and the approval of the attorney-general obtained afterwards. In other words, the board got into trouble on account of these allowances, and, when the trouble came, they secured the approval of the attorney-general. It will probably be well to state in this connection that in his opinion approving the allowances the attorney-general said there was some ambiguity and uncertainness in the statutes. There is nothing in the record to show that the district attorney applied for and was refused the approval of the attorney-general to bring this suit.

Section 4363, Code of 1930, is in broad and general terms. It makes it the duty of the district attorney to prosecute "all civil cases in which the state or any county within his district may be interested." The authority to prosecute carries with it the authority to institute. Inhabitants of Great Barrington v. Gibbons, 199 Mass. 527, 85 N.E. 737; State ex rel. v. Dawson,86 Kan. 180, 119 P. 360, 39 L.R.A. (N.S.) 993; Ex parte Kelly,45 Okla. 577, 146 P. 444. It is useless to cite further authorities to sustain that principle; there appears to be nonewhatever to the contrary. The Legislature did not intend to give some other officer authority to institute suit and the district attorney the power to take the case away from him and prosecute it. If this section of the statute stood alone, there would be no limit upon the district attorneys' authority to institute and prosecute civil cases in which the state or the counties within their districts are interested. Without any further authority, he would have the power to institute and prosecute the actions provided for in sections 4366, 4369, and 4370. These three sections simply excerpt the broad powers given the district attorneys in section 4363. They take out of the latter section the class of cases enumerated in them, as to which they provide that the district attorney, before suing, must have the approval of the attorney-general. To illustrate: Take section 4370, which provides that the consent of the attorney-general in writing shall be a condition precedent to the right of the district attorneys to institute and prosecute civil actions for violation of our anti-trust statutes. Can there be any doubt that before the adoption of this section, which was by the Legislature of 1922 (chapter 274, Laws of 1922) the district attorneys, under section 4363, had the right to bring anti-trust suits without the approval of the attorney-general? It seems that to ask that question is to answer it in the negative. To hold otherwise would violate a rule of statutory construction of long standing. What is said about section 4370 is also true of section 4369. Putting it differently, sections 4366, 4369, and 4370 simply lift out of section 4363 a certain class of cases and provide that they cannot be brought by the district attorneys without the approval of the attorney-general.

There is no contention that this suit by the district attorney comes within the provision of either section 4369 or 4370. It is argued that it comes within the terms of 4366. It must be borne in mind that the district attorneys have all the powers conferred by section 4363 which are not expressly taken away by the other three sections referred to. What is the class of cases provided for in 4366? That section provides that a district attorney shall not bring any action concerning the revenues or expenses of a county without the approval of the attorney-general, where the suit is the result of an investigation and an opinion in writing by the district attorney in pursuance of a request therefor by the county depository, or the board of supervisors, or the clerk of the board. The case at bar is not one provided for in that section. There is nothing in the record to show that either the board of supervisors or the county depository or the clerk of the board of supervisors called on the district attorney to investigate and give an opinion in writing as to whether the members of the board were liable. The last clause in that section, authorizing the district attorneys to prosecute to effect before the proper court all persons indebted to the state or any counties within their districts, must be construed in connection with the first clause of the statute. Construing these two parts of the statute together, or the statute as a whole, they simply mean that the district attorneys, under the authority of section 4363, have the right to bring suits to recover all revenues due their counties, except in cases where they have been called upon to investigate and give opinions in writing as to whether such revenues are recoverable, in which cases before bringing such suits they must have the approval of the attorney-general. It is not apparent why this limitation was put on the general powers of the district attorneys conferred by section 4363, but the question of the wisdom of it is not for the courts, but for the Legislature. Why did not the Legislature provide in section 4363 that the broad powers therein given the district attorneys should be subject to the approval of the attorney-general? There must have been a reason for not doing so. The only reason I am able to see is that the Legislature intended that those broad powers should remain in the district attorneys, unhampered, except as expressly limited in the other three sections referred to.