Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1882-03-09

| the canvass here. AS TO tne powers OF Tue
| Attorney General to bring this action, he
cted Johnson's Chancery Reports. There
the offense was crime against the State.
The Attorney General possesses the common
| law power, and the words Attorney. General
| were used in the Constitution in their com
mon law sense, giving to that officer as indie
pendent powers as are given to his Honor
On the bench. Wood on Nuissnces, Sec. 81,
the case in 2 Anstruther is considered as 1t Is
| in 2 Johnsnn's G. R., and it is quoted that the
| Attoruey-General could present an informa-
| ton to abate a nuisance ia the Crowns har-
| Dor. Il is there also shown that the practice
| does not prevail to name relator in such
cases as this. Formerly, says the book.
where the encro2chmens was public nui-
sance, it was a5ated, for even the Crown
could not maintain public nuisance. Even
| in England, with the almost unlimited pow
| Of the Government, a public nuisance could
not be maintained, by the King. 1t was not
political question, but solely and simply
one of law.
AT COMMON LAW
The Attorney. General had the power, indie
pendent of the statute. to proceed by infor-
nation to abate public nuisance. All these
authorities expressly hold to that end: is
Beesy, 2ll; . NJ. & c.. 1913; 10 Price, $50 /;
10 Price. SIS; 2 Anst.. 603; Page CHI. 132 /;
2i2; 16 GRAY, 247; 10S Mass. 426 /;
Elem on Ipjuuc'ions, 259; Story Eq,
Juris., vol. 2, 100, Section 922 Story,
| in this last citation, expressly asserts
this power. This authority also is clear as TO
the duty of the Court in the exercise of its
discretion IN taking notice of the social and
political condition of the country. When
individual rights have been disregarded, the
rights of all the people to navigate the rivers
of the State are infringed, it ceases to be a
political question, and the Court is bound to
administer the law. As to the Attorney
Generals right, however, to bring this action,
he was willing to rest on the case of Stratton
cited by d, sndant, and the only one in this
State. Either enumeration of powers by the
statutes is a limitation on the Attorney Cen
erals power, or it is nor. Ii, as defendant
admits, the Attorney General may, without
statutory authority, bring an action to attack
patent to sustain the proprietary rights IF
the State. he opens vida the door. He cannot
say that in one case the Attorney. General is
limited by the statute, and in the same
breadth declares that he may exercise COM
mon law powers. In this case cited it was
contended that the Attorney General had no
power beyond the statute, but the Court says
| he is of the executive arm of the State, and
has the powers natural to his Office necessary
to exercise the functions Of his high Office,
and that he mag proceed where the matter in
dispute involves the interests OF the State.
This decision shows that the Attorney-Gen-
eral is a constitutional power, although it
does not define the duties of the office. In
this case cited it is shown the question was
not as to the power of the Attorney General
to exercise his constitutional powers, but
only as tc the interests Of the plaintiff. Ia
AZ Cal Love W.. Baehr, on the bench
JUDGE WALLACE HELD DIFFERENTLY
From whathe now does He asked If the Attor.
ney-Geueralh has common law andconstitution.
al power, why may not the Treasurer exercise
his? Why may he not claim to pay out the
State money as he pleases? So, he asked,
why might not the Controller assert the
same right? According to him, ii the At
torney Generals powers are not expressed by
statute he has none at all. Also, that the
Legislature may limit or extend his constitu-
tional powers. Now, in the case cited az
Cal it was case where the Treasurer of the
State resisted a payment to the At
torney General as one of the State
Board of Examiners, and that the
law contemplated no payment to him for
Wallace en- the bench) the Constitution left
the duties of these offices to be prescribed by
the Legislature. and could the latter compel
the executive officers to act Ia various capaci-
ties outside of the regular line OF duty and
the Court says a limitation is implied on the
powers Of the Legislature to limit or ex
t4nd tAe constitutional powers OF these eff
cers. The trainers of the Constitution had
reference, ia speaking of the duties of these
officers TO the well known and usual natural
duties and powers attaching and appertain-
ing to such Offices, and the Legislature can
not impose duties foreign TO the Office. IL
then outlines the duties of the Attorney
General, and adds, some of these duties have
not the slightest relation to the duties of
Attorney General, usual elsewhere, az IN
dsrstood at the framing of the Cor
stitution That the Attorney General car
not be compelled to extraneous labor,
but If he consents to do so, he is
entitled to compensation. Either the
Constitution gave him his natural powers,
and those usual aud natural to his office, or
else it left his duties at the mercy Of the
Legislature In 43 Cal. it is said words used
in the Constitution ara not subject to limita-
ton or enlargement by the Legislature. OF to
any change in meaning. Suppose the Legs
laturs, becoming disguised with the At5or-
ney-General, seek. to shear him of all power
cut off all his duties, and supplant him in all
ways possible, could it be seriously main
tairei that such thing can be done with an
independent officer of an Independent De-
partment made by the Constitution equal to
the Legislative Department? Ii not. then
the Atsorney-General has and may exercise
the common law powers natural to his office,
aud usual elsewhere. (l3 La. Annual, 424,
citedl.
RIPARIlN RIGHTS.
Counsel for defendant seems to depend on
the question whether the common law rules
as to riparian rights prevail here. In this
view they gave elaborate historical sketches
of the early days of California, bat they
were wholly irrelevant. He, the Attorney
General, had no harsh feeling against the
miners, or the people Of their section. He
had as bread sympathy and respect for them
and the gold seekers as any man in the State.
He recognized the mining element as one OF
the important ones, and it's industry as i'm
portant as any can hold it. He was
not employed in the case, but in the line II
his bounden duty he was In it to stand between
two great conflicting industries, and his re
greet was deep and sincere that his duty led
him to do that which. according to defend
ants counsel. will DEF reciate defendants
property. But all that is fit only for the po
litical forum, and he regretted that defend
ants COUNSEL had forced IL into the case By
attacks upon him. He had told the legisla-
tive committee last year that If he found it
his duty to act as he had, he should do so re
gardless OF the consequences and if he found
il not to be his duty, he would refuse TO act
notwithstanding legislative resolutions, and
acting as an Independent officer of the execu-
tive department
THE TITLE TO THE RIVERS.
Now the title to the rivers has never been
coded to the Federal Government, and has
always been retained by the State and hence
the United States Government has had no
authority to grant in auy form the right to
the use Of the streams. In II rs. of Ids,
the rule is stated as 1t prevails in England.
(And here be desired to say he argued
the case from public standpoint
only, and not for or against either
party, except so far as that position
necessitated l. is there held that the beds
of all navigahle rivers, and the streams
where the tide fl rvs, belong to the Crown, but
only for the benefit and uses of the people,
and one of these is the right of free naviga-
ton. This right never could have been in
teriered with by the Crown, i. e., the right to
anchor, which is part of the right of navi-
gatioL. Wood on Nuisances, PIP. 62S and $50,
is conclusive of the matter, where it says in
this country each State has complete control
Of the navigable streams of the State that
are rot means OF intercommuaication with