Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-04-01


becomes clear that the powers thus conceded TO me
must be the result of constitutional construction
and consti utional power else, according TO the
well settled primo pie which counsel has himself re-
peated to your Honor in this case, am confined to
the statutory powers named because the enumera-
ton Of one IS the exclusion Of all Others We must
either stand fall on That rule. Their the Legs-
lature in the enumeration Of my powers has con-
fined me to those cases which have been mentioned in
the statute or the Legislature in the enumeration
of my powers has transcribed the limits OF
its own power and has , qnde Tonse; ine
has not committed to it powers in the
hands OF an independent department of the
Government And II it be true that under the author
tiles which he cites it is wi hin the power Of an
attorney General to bring an action independently
of statute for the purpose OF setting aside patent
which has been issued, simply because he is under
taking to maintain proprietary interest OF the
State, then | submit to your Honor that he opens
! up the field that the Attorney General, in addi
toa 10 maintaining the proprietary interests of the
state, assumes the position OF the Attorney Gen
eral that term is used in the Constitution, with
general power to represent the State in the main
tenance Of its legal rights. 1t will not do to blow
hot and cold in the breath it will not do to
assert, for the purposes OF this case, that am con-
fined TO the exercise OF statutory powers while, for
the purposes OF another case, | to exercise pow
attached to my office by the Constitution. When
the Courts, in the determination Of my powers
step beyond the statute and concede to me powers
other than those named in the statute they by that
means implicitly, ii not expressly, recognize that In
the very that creates the office there has been
a comforting of such powers as the Attorney General
in The past has exercised.
Now in this of the People v5. Stratton, page
246 it is said The Act, as already observed, does
not make it the duty of the Attorney to in
stitute any action on behalf Of the State In any
Court OF original jurisdiction, and from its silence il
is argued, behalf of the respondent that he can
have no such power without the aid of legislative
enactzient." That is the position OF Judge Wallace
| in the case.
"But can this be so, when the nature and objects
| of the Office are considered z
Now where do they get the nature and objects OF
| the Officer From the Constitution.
| The Attorney General is the law officer OF the
State and he is cassed as belonging to the lXecu
! tive Department Of the Government. The Gov
ernor is the chief executive Ct that department
| By the Constitution it is made his duty to see
that the laws are faithfully executed. And to this
| end he must have the authority, in order to exc
cute the powers belonging to his high office, to call
to his aid when necessary the services OF this law
officer In England the Attorney General was from
| an early period, denominated an officer OF State
He was elevated to this high position by letter:
patent, granted by the King and he was the legal
representative of the Crown in the Courts OF law
| and equity. He exhibited informations and prose
cuted for the Crown in criminal cases. He filed bill;
in the eXchequer in revenue cases, and lnformatons
in chaucery respecting matters in which the Crown
was interested. In the Commonwealth vs.
Fowler; 10 Mass, 29t, it was LED Ee,a 'h "a,
offico to file an information against person for
usurping public Office, and in that case Chief JUS
tice Parsons said An information for the purpose
| of dissolvIng a corporation, whether created by
charter under the seal Of the Commonwealth, or by
statute CT the legislature may be prosecuted either
under the authority of the Legislature, to be exer
cised in each particular case or by the Attorney OF
Solicitor General actiHg ex oicio in behalf OF the
Commonwealth. The question as to the Bht OF TIE
AttorneyGenera Of the State eX ofticio to file an
Information in the nature of bill in chancery
is one perhaps Of difficult solution but by analogy
to the powers exercised by officers of Ike character
in England, and in mot if not all CT the States Of
| the American Union, think he may do 50 IN 4
case where the M tier involved Ill suit immediately
| concerns the rights and Interests Of the State.
Now, the only proposition which the learned
counsel finds in this which he asserts is favcr
able to bis views is mere sentence which c5nst!
tutes part of the reasoning OF the Judse-dlscon
nected, I-olated, standing alone, without any OF
the reason upon which this decision was rendered
| Your Honor will agree with me, believe, and sly
! friend, Judge Wallace, wi agree with me, when
say that the necessary deduction from reading oil
| this decision is that the power asserted and main
taine1 by the Attorney General in the Sratton case
was construed to be constitutional power, beyond
the control of the Legisl .ture; and that it was
constitutional power because the Constitution, IN
| defining the office of Attorney. General, and proyd
ing for his election had failed to provide whatdue
| he should perform; and that the Consti ution, in
determining the severa! departments CT the Govern
ment, made legislative department, which was In
| itself an independent department. and made an
executive department., which in itself an indie
pendent department, exercising powers Of an ex
ecutve nature, and far beyond the control of egis
lation The sentence upon which counsel relies is
at will be observed by these cases that it was a
matter of prominent importance that the Govern
ment was Immediately concerned, as having pro.
prietsry right in the subject sought to be al
ected by the suit"
Now. submit to your Honor that the above sen.
tence, contained in that decision, is not one which
goes to the power of the Attorney General but that
it is which goes to the interest Of the plaintiff in
4
tenance of the action and not the power of the At
torney General to exercise tgose constitutional
powers which necessarily flow from the creation OF
office II this nature.
subject, Judge Wallace has forgotten in his zeal
to maintain the interests Of his client in this
the decision TO which, the Chief Justice OF our
Supreme Court, he gave his sanction. refer TO the
case OF Love VS.. Bache, in AZ Cal The leaned
counsel will not deny that that received his ju
d!cal appreciation at the time that it rendered
And in Connection with that desire to call your
HOnors attention to his language in this argument,
basirg evidently his theory OF the knitted pow
ers Of the Attornf y General upon ground
totally inconsistent with that which he assumed in
the case to which reference has just been made.
Did n5t he say TO your Honor this morning that if
the Attorney General may claim the right to exsr-
else constitutional and common law powers, if in
the designation ii the office IN the Constitu-
ton powers have been COME red which are not the
subject Of legislative limitation and control, why
may not the Treasurer of this State undertake to
assert his constitutional and common law powers
also 7 Why may he not say that the nature of his
flee implies the unlimited constitutional power to
pay out the moneys Of the government as he
pleasesf Why may not he question the power of
the Legislature in enume ating the duties OF the
State Controller and in fixing the powers OF the
State Board Of Examiners to say that bills shall be
audited before the Treasurer shall pay? Why, in
other words says Judge Wallace, may he not claim
the right to pay out the State money as he peases,
without reference to any system OF auditing, NJ d
haN lad hat
subject D
His language was in effect that the Attorrey.
General created and his duties were to be pre-
scrbed by the Legislature. OF course, the logical
effect of that doctrine 10, that il his duties not
prescribed by the Legislature he has nothing to per-
form. Either the terms OF the Constitution itself
confer upon the Attorney General powers, or they
do not But 1t would be novel doctrine TO address
to your Honor that the Constitution might impose
duties in pliedy expressly upon an officer and
that the Legsla might deny to him the right to
exercise those duties powers, or might extend the
duties in the absence Of express constitutional
thority 60 TO do.
1t would be die for counsel to come before your
II land nd rtake to argue tn 1t tie construction
q he Constitution depended upon legislation that
the powers conferred upon officers OF the executive
department by the Constitu ion depended upon acts
of the LeSis ature; that the powers Of constitl-
tonsl officer whose duties prescribed implicitly
expressly by tie Constitution could be altered by
the Legislature. 1t would be idle for him 10 under
take to maintain to your Honor that there could be
anything which an officer exercising constitutional
powers could do which the Legislature could con-
troll notwithstanding; ard yet this Is the argument.
The argument in this care is that have no power
except that which the gisature confers That argu
ment, | think, when taken in connection with the
deciso upon h lubiect will be found to be equally
as sound as the argument upon the main propos ton
| In this case. The OF Love against Baehr, az
Cal, 3s4, was an application for mandamus to
compel the State Treasurer to pay warrant drawn
by the Controller Of State in favor OF the Attorney
| General for portion Of the compensation due to
| him a member Of the State board Of Examiners
/ The Court (Mr. Wallace being one OF the Judges
said, speaking OF the powers OF the Legislature
The first question to be determined is whether the
Legislature has unlimited discretion in respect to
the nature Of the duties which it may require ~ be
performed by these officers The Cen.
stitution provides for the election Of Secretary Of
Surveyor General, but is wholly silent in respect to
the duties to he performed by either leaving these
| TO be prescribed by the Legislature. =
May II compel the Treasurer, Otfico, to act SIS
Warden Of the State Prison, or the Controller as
State Librarian, the Surveyor General a State
Commissioner, having charge Of the public buildings
aud grounds, or the Attorney General as the Super
intendsnt of the State Lunatic Asy lum, the sec
resrv of State as the manager OF state hospitali
. II there is no limitation upon the powers of the
Legi ature in tspect to the nature OF the duties
which it may impose upon these oficerp 1t is clear
that it may exact from either OF them the perform
auce OF any all of the services above indicated.
II require the State Treasurer TO be at the same
time lex oicio the Warden Of the State Prison. Super
intendent OF the State Lunsuc Asylum. Manager Of
the State Hos ptal and Commissioner OF the Public
Buildings. The power of the Legislature being con
coded to be unlimited in this respect there would