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


State policy is in the hands of the judiciary. But
SO long as am in this office, if they will bring to
my notice in which there is violation OF the
law still believing do that the power to make
the law is in the legislative department, shall I'M
dertake fully to execute the law to its letter, and
shall hold the law making department responsible.
Now in discussing the question as to whether or
not the
ATTORNEY GENERAL HAS THE POWER TO
PROSECUTE THIS ACTION,
expect shall have TO refer somewhat to the opin-
ions of the learned ex Chief Justice himself, who,
unfortunately for the position he has taken IN this
case, has concluded this question in such manner
that it is not now the subject Of debate.
But before doing SO | desire TO discuss, TO some
extent the authority upon which he mostly relies,
the authority which he triumphaDtly presents TO
your Honor and asks that We may comment upon
H. desire to show by that authority, taken In con-
nectcn with the California aGthories which he pre-
seuts that the very position which he lakes In TINS
case is emphatIcally denied and oveFruled
In commenting, on page 382, upon the case OF the
Attorney-General against Richards e Anstruther,
603), tie latter being action brought by the At
torney- General for the purpose Of abating nui'
sance substantially the same as that which Is
alleged in this case, the Court says: 8 But giving
to this the utmost weight there is very little
analogy between it and the one Tow before me.
There is no encro lchment upon the property of the
State nor is the mischief of a similar nature. The
objection to the exercise OF the banking power
(that the here) in this case is that it Is I'M
extravagant to hold it to be public nuisance or
that kind eff annoyance and mischief which nui-
sance implies. The information is founded on the
charge that the banking power exercised by the de-
PENDANT is not given by their charter and that it IS
cffense against the statute. There is case in
which an Information has been sustained in this
Court on such or Junds
The learned counsel Cir Waac cites in support
OF his position the above case involving the illeg
undertaking TO exercise the ranking power, made
criminal by the statutes of the State, the same as
forgery is made criminal here, the same as perjury
is made criminal here. The act complained OF i'll
the case cited was crime against the State. And
In drawing the distinction between the case upon
which counsel (Mr. Wsllice) much relies, and the
case OF the Attorney General agai st Richards in
Anstruther the Court expressly says that the Illegal
exercise Of the banking privilege Is not nuisance
within the meaning Of the law, and hence that the
Information does not lie for the purpose OF abatpg
it. This is the authority upon which the counsel
relies And expect 10 claim, upon the authority OF
Judge Walace'5 own decisions, to which he judici
ally subs rbed willie he was grazing the Supreme
Court with his great ability, that the Attorney Gen.
eradoes possess the common law powers to prosecute
this action, and that the woi ds Attorney General,
designating the Office used IN the Constitute n
in their common law sense, giving to the Attorney
General powers that are as independent of legisa-
ton the Legislature is independent Of the powers
Of the Attorney General; giving to the Attorney
General powers that as Independent OF the Chief
Executive the powers Of the Chief Executive are
independent OF the Attorney General; giving to
him, in other words powers that are as independent
as the powers conferred by the Constitution upon
your Honor presiding upon this Bench, and that are
neither subject to limitation expansion by the
exercise of the legislative power.
In Wood on Nuisances," page S., Section 81,
speaking of the common law powers OF the At or
neY-General, the author says: "The remedies fol
this species Of injury were formerly by in
formation OF intrusion at common law, or by in
formation at the suit of the Attorney General IN
equity. In the Attorney C eneral against Richards
. li-bH fort he
erection of WHAT quay, docks and other build
ngs between high and low-wster mark in Ports
mouth harbor, It was held, on the authority of nu-
merous cases, that an Information in equity, at the
suit Of the Attorney General would lie to abate 1t,
the Crown having title to all ports and avenues OF
the sea, and the soil thereof. And it was said in
that that nfornatons of this character had Of
ten been brought and sustained. And the Court
cited as instances where this remedy had been
adopted several unexpected cases" Cooper says on
page 1o2 Cf lis work Equity Pieadings ::
Though informatious in these cases may be and
often are fled without naming ielator, vet there
is great proprietY in nsm re.ator in all cases,
and much oppression from a contrary practice may
take place, since if there is relator the defend
ant can have costs, though the suit should appear
to have been ever so improperly and wantony nsti-
tuted"
read the latter portion of this authority because
some comment has been made upon the fact that
there is not reatOr named in this ease. / cite it
not as showing that II relator had been named in
the pleadings there would have been an absence of
juri-dicticn defect of parties in this case but
as showing that an action Of this kind should be
purely public in its nature, as having reference to
the protection Of the public streams which belong
to the State, and in which the State alone is inter
ested.
Mr.. Wood further says: Formerly, if the en-.
croachn was regarded as puIpresture merely,
and did not me within the idea OF what was then
regarded nuisance, it the practice to direct
an inquiry to be a1e, whether it would be most
beneficial to have the purpFesture abated, or to al
low it to r, main and be arrented. But where the
eneroachment was regarded as public nuisance it
was absted for the reason that even the Crown
could not sustain public nuisance. Therefore a
ourpresture, strictly, is encroachment upon a
public right in lands or navigable streams that es
not operate an obstruction injury to Individual
members Of the public, but only TO right incl
dent and peculiar to it in its sggreqate Icity
such. The distinction between nuislaces and pur-
prestures Is really broad, alt Ough at first thought
there may appear to be no m tarial difference. and
Courts have very often fallen into grave errors from
failure to observe the real boundaries between the
two"
Now, in the discussion Of this question (and as we
go along We have me more nearly TO the propcsi-
tou) counsel has severely taken to task officer
who, IS he SAYS, has the temertV tn array himself
ia opposition To the legislative and executive depart
rnents of both Governments, aud to undertake IS
he says, a charge i'll tie law, which change, he
maintains, must be made by the political depart
ments Of the Government. But even in England.
with the extended ard almost unlimited powers Of
ParlfaIneut. puDllC nuisance could LOT Dc aulfllr
lied and hence, when it was demonstrated that a
public nuisance hal teen committed they mmed =
ate.y proceeded TO its abatement the forma.
ton Of the Attorney General. Where 1t was but a
Iurpresture, not amounting TO a publ nuisance,
they determined the question which counsel says
should be determined in this case, by resortirg to
an inquiry into the correct policy which Govern
ment should purs in deciding whether tie greater
benefit should be derived from the maintenance of
the purpreslure, or tie greater benefit from the
abatement of 1t. But in case Of public nuisance,
interference with the rights OF the people, ard Of
each OF the people In the realm the Grown itself
had power to enter into the discussion OF poiti-
cal questions, but it became question OF law, a
question which was beyond The exercise of govern
mental powers. And shall demonstrata, believe,
that it is in this country beyond the powers Of the
Governu en- to determine that nuisance against
the pc ople shall be maintained.
have digressed somewhat from the position that
intended first to discuss. 1t Is we'll settled in this
country and the principle Is established by numer-
Gus authorities, many OF which | m ght call YOUR
Honor's attention to without reading, that the At
torney- General at con mon law had the power
to proceed by information for the abatement OF a
public nuisance. Az cases demonstrating the pow
ers Of the Attorney General at common law, will
cite your Horror to a few only in which that power
has been exercised illustrative of the proposition
without referring TO the text, namely Attorney
General vs. Cleaver, IS Vesey, I'll; Attorney. Cen
eral Va. Forbes, Mylue & Craig, 1913; Attorney
General vs.. Burridge 10 Price, $50 Attorney Gen.
eral ParmGter, 10 Price, SIS; Attorney General
vs.. Rich rd-, = Anst., 63; Attorney General VI.
Colo g Coun Y, e C 8 Paige Chancery, 1872 st,te
W.. Smith, Is Loliiaua Annual, 42I; Attorney
General w. Bos on VI arf Company (very much ike
tho case at BARI IL Gray, 1858 The District Attor-
ney (who took the position Of the Atoruey-;en ral
in that easel vs.. l.. B. and Z. Co, 16 a. 242 At
torney-Gfneral vs. City of Cambridge, l6 Graz,
2i7 Attorney General ". Weeds, los Mass, 436.
And supporting this authority and this right AZ
common law Of the Attorney General, l cIl your
Honor's attention to Eden on lniunctions, page
259 and TO Storys Equity Jurisprudence, vol. H..
page 100, sec 922. In those works the power is
pressly asserted Story SAYS in his work, on page
100: " In cases Of pUrprestIre the remedy for the
Grown is either by information Of intrusion at
mon law or by information a. the su OF the At
toTney General in equity" And the author discuss
ing the question, vs.: The erection complained
upon decree in equity, ii 1t appear to be mere
purpresture without being at the same time nui-
sance drawing the distinction between those two
cases) the Court may direct an Inquiry TO bo made
whether It il most benz fetal to the Crown to abate
the purpresture TO suffer the erectnns to remain
and - be arrented: but il the purpresture be also
n public nuisasce, this cannot be done"
And will csll your Honor's attention, "a pass
along, to the fact that this authority is cited de-
cisIye Of proposition which counsel mas mede-as
to the duty OF your honor in the exercise Of dis
erection dir, cted, he says, by knowledge which
the Court must take Of the political and social con
Gitons Of the country, and deny the plant II s
prayer because, he says the State has recognized
the defendants right 10 perpetrate this injury
eminent has recognized it whether properly so or
not, and that IL involves vast industry which,
cording TO the history which lie has given to you,
Is one that has made this ate what IL is and in the
absence Of which the State, In all probability would
not have been part Of the Uuion to day Now
-, Al.