Morning journal and courier., 1894-03-05
THE NOLLR PRACTICE.

judges Studley and Hotchkiss Hand Down Their Decision in the Matter 1 The Petitioners Advised to Garry | the Question to the Superior Court. In the common pleas court Saturday af- ;ernoon Judges studley and Hotchkiss handed down their decision in the matter ,f the citizens petition for action on the nolle practice. The decision in full is as follows:
 NEW HAVEN, March 9, 1894. John W. filling. Esq, and other Petition
 Sirs-An answer would have been made earlier had not your attorney. Judge Nun ger, by the use of language which appear ed to be disoourteous, given us to under stand that we were not expected to consid- or the petition or to answer 1t.
 Since tho hearing we have become as- sursd not only that his language did not have the sanction of the petitioners, but also that the petition was presented and the hearing asked for, go far as you, the petitioners, were concerned, in good faith. We therefore feel it to be our duty to give you an answer.
 In stating our conclusions we feel that we shall be better understood if we first give you statement of certain matters which appear to preclude us from the right to act, and therefore render 1t use less for us to proceed further in the inves' tigstion.
 When the criminal side of the court o. common pleas was established, 1t was pro vided by statute that the court should ap point prosecuting attorney, find that thu powers and duties of the attorney be th' same as those of the states attorneys il the superior court. We find that thu powers and duties of the said state's at torneys are only in part defined by stat | ute. With reference to his power tt nolle cases upon the payment of mone1 (which Is the matter now in ques tion), we find that by a Ionl continued and universal practice { custom has grown up which ha become we'll established in the courts and that by virtue of that custum the sait attorneys appear to have the right and tn, power to settle cases in that manner. w also find that the legislature has apparent ly recognized this practice, by providing that state's attorneys shall annually mak' a report to the comptroller, among othel things, of the cases 50 settled. Appealed cases, which are the only ones brought tt the criminal side of the court of common pleas, were, prior to the establishment o the gaid court. and now are in all but thre. counties, taken to the superior court. IT that court, at the time when the court o1 common pleas first came into existence state's attorneys exercised the right (anc they ever since have exercised it), in theil discretion, to nolle appealed and other cas es upon the payment of money.
 Under all of the circumstances we could not we'll presume otherwise than that thu legislature had such custom in view wher E. eko$, ta {rS ~or1 &1 h. powers and duties of the prosecuting at torney of the court of common pleas. | this presumption is well founded, then VI think it must appear that the prosecuting attorney has the power to settle cases il the manner referred to, and that the le gis laturs intended both that he should hay the power and that he should exercise it. The question now presented by you 1 not new one to us, for it came up fo consideration at the time when this cour was first organized.
 The judges then came to the conclusion and advised the prosecuting attorney tha 1t was his legal duty to follow the practic of the stete attorneys and 1t appears to U that he has consclentiously exercised tn powers and duties of his office in accord | ance with such advice and in 0 lawful man ner.
 | AS Lu0 Ia" uo~ 6bhuus, w0 o10 OA LII l opinion that, If the powers and duties c the state attorneys should bs enlarged c a ridged, thereupon the powers and dutit of the prosecuting attorney would be II creased accordingly.
 Therefore we renew the suggestion ths you take your suggestion to the honorab judges of the superior court, and we b. Iieve that If they will consider your claim and render their decision thereon, whetbe it be that the practice in question is who'll or in part wise or unwise, or whatever
 may be, it will have the effect of dete1mir ing just what the poweIs of state and pro' cutting attorneys are in settling casee, an relieve them from embarrassment and ur merited criticism, and also of satisfyin public opinion. (Signed)
 JOHN P. STUDLKY,
 HOBART L. HoTCHKIss,
 Judges of Court of Common Pleas.