No. 12240 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA on the relation of 

ROBERT L. WOODAHL, Attorney General of 

the State of Montana, 

Rela tor, 

THE DISTRICT COURT OF THE FIRST JUDICIAL 

DISTRICT OF THE STATE OF MONTANA in and for 

the County of Lewis and Clark and HONORABLE NAT 

ALLEN, the Acting Judge thereof, 

Respondents, 

Counsel of Recordc 

For Rela tor : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

John P. Connor, Jr., Assistant Attorney General, 

appeared, Helena, Montana. 

Poore, McKenzie and Roth, Butte, Montana. 

Robert Poore argued, Special Deputy Attorney General, 

Butte, Montana. 

Donald Robinson appeared, Butte, Montana. 

For Respondents: 

Sandall, Moses and Cavan, Billings, Montana. 

Charles F. Moses argued, Billings, Montana. 

AMICUS CURIAE 

Ha James Oleson, argued, County Attorney, Kalispell, 

Montana. 

Submitted: March 28, 1972 4 

Decided : MAR 8 1 1972 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

The attorney general's application to this Court for 

supervisory control or other appropriate relief presents but 

a single legal issue: whether the attorney general, under the 

facts and circumstances of this case, has the power to initiate 

a criminal felony prosecution in the district court independent 

of the county attorney. 

The district court held the attorney general has no such 

legal power. We agree. 

The facts of this case are not complex. The attorney 

general applied to the district court of Lewis and Clark County, 

the Hon. Nat Allen, district judge presiding, for leave to file 

a direct information charging one George McGaffick with eight 

felony counts involving the presentation of fraudulent bills or 

claims to the state for allowance and payment. The application 

was signed by John P. Connor, Jr., assistant chief deputy attorney 

general of the state of Montana. The county attorney of Lewis 

and Clark County was not consulted and did not sign the application for leave to file the charges nor did he sign the information tendered to the court with the application. 

On March 3, 1972, Judge Allen held a hearing on the application of the attorney general. Judge Allen heard detailed proof 

of probable cause for filing the information direct and made an 

express finding that probable cause existed and had been proven. 

However Judge Allen denied the application on the sole ground 

that the attorney general did not have authority t o f i l e the information himself independent of the county attorney's participation 
and signature. 

Following this denial by the district court, the attorney 

general applied to this Court for supervisory control or other 

appropriate relief to review this determination by the district 

court. We issued an order to show cause and thereafter briefs 

were filed and oral argument heard on behalf of the attorney 

general, the district court, and the Montana County Attorneys' 

Association as amicus curiae. Additionally a motion to quash 

was filed by the Montana County Attorneys' Association, 

At the outset we hold that the writ of supervisory control 

is available as a remedy to test the power of the attorney general 

in this regard. The attorney general has no remedy in the ordinary course of law by appeal from the district court's order, It 

will not do to say that he has an available remedy by directing 

the county attorney to sign the information and file it, for to 

do so would amount to an abdication of the legal power claimed by 

the attorney general and would furnish no answer to the legal 

issue he seeks to raise. 

Proceeding to the merits, the basic position of the attorney general is that he has power t o f i l e these criminal charges 

and initiate this prosecution independent of the county attorney's 

power to do so; that the attorney general's power in this regard 

is derived from the common law which has not been abrogated by 

constitution or statute. 

On the other hand, respondent's position is simply that 

the attorney general's common law power to initiate a criminal 

prosecution independently of the county attorney has been superseded by statute in Montana. 
The common law power of the attorney general to file 

criminal charges and initiate criminal prosectuions is tacitly 

conceded. Nor can there be any real issue in this regard. Section 12-103, R.C.M. 1947 provides: 

"The common law of England, so far as it 

is not repu.gnant to or inconsistent with 

the constitution of the United States, or 

the constitution or laws of this state, or 

of the codes, is the rule of decision in 

all the courts of this state." 

The Montana Supreme Court, in State ex rel. Ford v. Young, 

54 Mont. 401, 170 P. 947, had this to say concerning the nature 

and origin of the powers of the attorney general: 

"The office of attorney general is of 

ancient origin. The powers and duties 

appertaining to it were recognized by the 

common law, and the common law has been a 

part of our system of jurisprudence from 

the organization of Montana territory to 

the present day. (Bannack Statutes, p. 356; 

Comp. Stats. p. 647; Rev. Codes, sec, 3552). 

In this state the office of attorney general 

is created by our state Constitution (sec. 1, 

Art. VIII), which also provides that the 

incumbent of the office 'shall perform such - 

duties as are prescribed in this Constitution and by the laws of this state.' The 

Constitution enumerates certain duties, and 

section 193, Revised Codes,(now section 82- 

401-11, R.C.M. 1947) certain others, and 

then concludes by imposing upon the attorney 

general 'other duties prescribed by law.' 

It is the general consensus of opinion that 

in practically every state of this Union 

whose basis of jurisprudence is the common 

law, the office of attorney general, as it 

existed in England, was adopted as a part 

of the governmental machinery, and that in 

the absence of express restrictions, the 

common-law duties attach themselves to the 

office so far as they are applicable and 

in harmony with our system of government." 

(Emphasis supplied .) 
To the same effect see State v. Public Service Comm., 

129 Mont. 106, 283 P.2d 594. 

The underlying issue here is whether or not the attorney 

general's common law power in this respect has been abrogated by 

statute. At the outset in a criminal case we note a complete 

absence of any constitutional or statutory power vested in the 

attorney general to file an information or initiate a prosecution 

independent of the county attorney. On the other hand, there are 

numerous statutes requiring the county attorney to file criminal 

charges and institute criminal prosecutions. Section 16-3101, 

R.C.M. 1947, lists the powers of the county attorney and this 

section reads in pertinent part as follows: 

"16-3101. Duties of county attorney. The - 

county attorney is the public prosecutor, and 

must: - 

"1. Attend the district court and conduct, 

on behalf of the state, all prosecutions - for 

public offenses and represent the state in all 

matters and proceedings to which it is a party, 

or in which it may be beneficially interested, 

at all times and in all places within' the limits 

of his county; * * * 

"3. Draw all * * * informations * * * 

"9. When ordered or directed by the attorney 

general so to do, to promptly institute and 

diligently prosecute in the proper court, and 

in the name of the state of Montana, any criminal 

or civil action or special proceeding, it being 

hereby declared that the supervisory powers 

granted to the attorney general by section 82- 

401(5), include the power to order and direct 

said county attorneys in all matters pertaining 

to the duties of their office." (Emphasis 

supplied. ) 

Section 95-1302, R.C.M. 1947, provides in pertinent part 

as follows: 
" * * * after leave of court has been granted 

* * * the county attorney must file, within 

thirty (30) days, in the proper district court 

an information charging the defendant with the 

offense for which he is held to answer, or any 

other offense disclosed by the evidence. * * *" 

(~mphasis supplied. ) 

Section 95-1503[53 (e) provides in pertinent part: 

"If the charge is by complaint it shall be signed 

on oath by a person having knowledge of the facts 

or by the county attorney; if by information, it 

shall be signed by the county attorney or by his 

deputy * * *." (Emphasis supplied.) 

Finally, section 95-101 governs the scope of the new Code 

of Criminal Procedure and provides as follows: 

"95-101. Scope. These provisions shall govern 

the procedure in the courts of Montana in all - 

criminal proceedings except where provision for 

a different procedure is specifically provided 

by law." 

We hold that the foregoing statutes expressly supersede 

and abrogate the common law powers of the attorney general to 

file informations in his own name and institute criminal proceedings independent of the county attorney. 

This opinion is not to be construed as any limitation 

on the supervisory powers and control of the attorney general 

over the county attorneys of this state as provided by law. This 

opinion simply holds that under the facts and circumstances here, 

the attorney general has no legal power to+file an information 

signed only by himself or to institute a criminal felony prosecution in the district court independent of the county attorney. 

This proceeding has already delayed the institution and 

prosecution of charges against George McGaffick since March 3. 
As probable cause for the prosecution has already been found 

by the district court, the prosecution of the case should not 

be delayed further. Accordingly, the attorney general should 

immediately direct the county attorney of Lewis and Clark County 

to sign and file the necessary information and proceed with 

prosecution of the case. 

Associate ~Zstice 
Mr. Justice Wesley Castles Specially Concurring: 

I concur in Justice asw well's view of the law 

that Title 95, R.C.M. 1947, supersedes the common law 

in criminal procedure. I, however, would not accept 

jurisdiction of this proceeding because no justiciable 

issue appears because the Attorney General has an adequate route by using the regular processes of. law. Thus, 

I concur in the result. 

~ssocN.te Justice 
Mr. Chief Justice James T. Harrison Dissenting: 

I am not, under the record before us here, prepared to 

qualify, restrict or lessen what I believe to be the powers of 

the Attorney General of Montana. This Court has discussed these 

powers of the Attorney General as granted by our Constitution, 

under the statutory law and under the common law and I do not 

intend to further discuss them but Z do wish to point out this 

wording from the opinion in State ex rel. Nolan v. District Court, 

22 Mont. 25, 29, 55 P. 916, to-wit: 

"The Attorney General is the principal law officer 

of the State. His duties are general; his authority 

is co-extensive with public legal affairs of the 

whole community. His advice often affects the rights 

of all persons within the State, and, excepting judgments and .orders of court, his opinions control 

public interests more largely than do the acts of any 

other official of the State. Responsibilities of so 

high a character are usually put upon a lawyer of 

ability, experience and character, and, presuming 

the Attorney General to be such, the statute has given 

him the significant, yet extensive, powers referred to. 

Again, exigent times occasionally arise in the affairs 

of a state, where local considerations render it impolitic to intrust a county attorney with the discharge of his duty unaided by learned counsel representing the supreme authority of the State." 

In the instant case the Attorney General states that in his 

opinion it is impolitic to intrust the matter with the County 

Attorney, and while I may not agree with the Attorney General's 

reasoning in this particular, I do feel that such a decision is 

within his discretion and one of his prerogatives. 

The same line of reasoning as quoted in Nolan seems to 

me to be repeated in State ex rel. Ford v. Young, 54 Mont. 401, 

170 P. 947, as well as in State ex rel. Olsen v. Public Service 

Commission, 129 Mont. 106, 283 P.2d 594. 

My dissent