### No. 12240 INTHE SUPREME COURT OF THE STATE OF MONTANA



### THE STATE OF MONTANA on the relation of ROBERT L. WOODAHL, Attorney General of the Stateof Montana,Relator,



### THE DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT OF THE STATE OF MONTANA inand for the County of Lewis and Clark and HONORABLE NAT ALLEN, theActing Judge thereof, Respondents,

Counsel of Recordc For Relator: 

### 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

## 81

## 1972Mr. Justice Frank I. Haswell delivered the Opinion of the Court. The attorney general's application tothisCourt 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 toinitiate

a criminal felony prosecution in the district court independent of the county attorney. The district courtheld the attorney general has no such legalpower. We agree. The facts of this case are not complex. The attorney general applied tothe districtcourt of Lewis and Clark County, the Hon. NatAllen, districtjudge presiding, for leave tofile



### a direct information charging one George McGaffick with eight felony counts involving the presentation of fraudulent billsor claims tothe 

### state for allowance and payment. The application



### was signed by John P. Connor, 

### Jr., assistant chief deputy attorney general of the stateof Montana. The county attorney of Lewis and Clark County 

### was not consulted and did not sign the application for leave tofilethe charges nor did he sign the information tendered tothe courtwith 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 filingthe 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 ethe information himself independent of the county attorney's participation

### and signature. Following this denialby the districtcourt, the attorney general applied to thisCourt for supervisory control orother appropriate relief toreview this determinationby the district court. We 

### issued an order toshow cause and thereafterbriefs

were 

### filed and oral argument heard on behalf of the attorney general, the districtcourt, and theMontana County Attorneys' Association asamicus curiae. Additionally a motion toquash

was filedby theMontana County Attorneys' Association, At

### the outset 

### we hold that the writof supervisory control is 

### available as a remedy totest 

### the power of the attorney general inthisregard. The attorney general has no remedy inthe ordinary course of law by appeal from the districtcourt's order, It 

### willnot do tosay thathe has an available remedy by directing the county attorney tosign the information and fileit, 

### for to do sowould amount toan abdication of the legalpower claimed by the attorney general and would furnish no answer tothe legal issuehe seeks toraise. Proceeding tothe merits, the basic position of the attorney general is 

### thathe has power t o f i l ethese criminal charges and initiate thisprosecution independent of the county attorney's power todo 

### so; that the attorney general's power inthis regard is 

### derived from the common law which has notbeen abrogated by constitution or statute. On the other hand, respondent's position is 

### simply that the attorney general's common law power toinitiate a criminal prosecution independently of the county attorney has been superseded by statute inMontana.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 inthisregard. Section 12-103, R.C.M. 1947 provides: "The common law of England, 

### so far as it is not repu.gnant toor inconsistent with the constitution of theUnited States, 

### or the constitution or laws of this state, or of the codes, is the rule of decision in allthe courts of this state." The Montana Supreme Court, in State ex rel. Ford 

### v. Young, 54 Mont. 401, 170 P. 947, had this tosay 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 toit 

### 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 alsoprovides that the incumbent of the office 'shall perform such - duties as are prescribed inthis 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 inpractically every stateof this Union whose basis of jurisprudence is the common law, the office of attorney general, as it existed inEngland, 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 inharmony with our system of government." (Emphasis supplied.)To the same effect see Statev. Public Service Comm., 129 Mont. 106, 283 P.2d 594. The underlying issuehere is whether 

### or not the attorney general's common 

### lawpower in this respect has been abrogated by statute. Atthe outset ina criminal 

### case we note 

### a complete absence of any constitutional 

### or statutorypower vested in the attorney general 

### to filean information 

### or initiate

### a prosecution independent of the county attorney. On the other hand, there 

### are

numerous statutesrequiring the county attorney to filecriminal charges and institute criminal prosecutions. Section 16-3101, R.C.M. 1947, lists thepowers 

### of the county attorney and this section reads inpertinent 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, allprosecutions for 

### - public offenses and represent the state in all matters and proceedings towhich it is 

### a party, 

### or inwhich it may be beneficially interested, atalltimes and inallplaces within' the limits of his county; 

## * * * "3. Draw all

## * * * informations 

## * * 

## * "9. When ordered ordirectedby the attorney general 

### so todo, 

### topromptly institute and diligentlyprosecute inthe proper court, and inthe name of the stateof Montana, any criminal 

### or civilaction or special proceeding, it being hereby declared that the supervisory powers granted 

### to the attorney general by section 82- 401(5), include thepower toorder and direct said county attorneys inallmatters pertaining to the duties of their office." (Emphasis supplied.) Section 95-1302, R.C.M. 1947, provides inpertinent part

as follows:

### " 

## * 

## * * after leave of court has been granted 

## * * * the county attorney must file, within thirty (30) days, inthe proper districtcourt an information charging the defendant with the offense forwhich he is held toanswer, or any other offense disclosedby the evidence. 

## * * *" (~mphasis supplied.) Section 95-1503[53 

### (e)provides inpertinent part: "If the charge isby complaint it shallbe signed on oath by a person having knowledge of the facts orby the county attorney; if by information, it shallbe 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 shallgovern the procedure in the courts of Montana in all 

### - criminal proceedings except where provision for 

### a differentprocedure is specificallyprovided by law." We hold that the foregoing statutes expressly supersede and abrogate the common 

### lawpowers of the attorney general to fileinformations inhis own name and institute criminal proceedings independent of the county attorney. This opinion is not tobe construed as any limitation

on the supervisory powers and control of the attorney general

over the county attorneys of this 

### state asprovided 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 toinstitute a criminal felony prosecution inthe districtcourt independent of the county attorney. This proceeding has already delayed the institution and prosecution of charges against George McGaffick sinceMarch 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. JusticeWesley 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 theAttorney General has an adequate route by using the regular processes of. law. Thus, 

### I concur in theresult.

~ssocN.te Justice

### Mr. Chief JusticeJames 

### T. Harrison Dissenting: 

### I am not, under the record before us here, prepared to qualify, restrict or lessen what 

### I believe tobe the powers of the Attorney General of Montana. This Court has discussed these powers of theAttorney 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 topoint 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 aregeneral; his authority is co-extensive with public legal affairs of the whole community. His advice often affects the rights of allpersons within the State, and, excepting judgments and.orders of court, his opinions control public interests more largely than do theacts of any other official of the State. Responsibilities of so high a character areusually put upon a lawyer of ability, experience and character, and, presuming theAttorney General tobe such, the statutehas 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 inhis opinion it 

### is impolitic to intrust the matter with the County Attorney, and while 

### I may not agree with theAttorney 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 inNolan seems to

me tobe repeated in State ex rel. Ford v. Young, 54 Mont. 401, 170 P. 947, aswell as in State ex rel. Olsen v. Public Service Commission, 129Mont. 106, 283 P.2d 594. My dissent