The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1910-07-28

the part OF the defendants 20 our
consideration OF the merits OF the
cause. These are--First. that
the state Is not the party In In
terest, and hence that the suit
cannot be maintained in Its name,
and, second, III the suit can be-
maintained In the name OF the
state. II cannot be done on the
relation of the county attorney.
Neither of these objections Is ten
able. The suit Is being prosecui-
ed by the proper officer. and In
the name Of the proper party
plaintiff; and In justification OF
this conclusion We need only refer
to the prior decisions OF this
court. Craft vs.. jackson Co. s
Kan. 51S: Bobbett vs.. state, 10
Kan. 8: Bartlett vs.. state, l3
Kan. 30; Stetc vs. Faulkner, 20
Kan. 5il.
In Hornaday et al VS.. state, 6.
Kan. s22, In a unanimous opinion
the court being composed Of Doster
Chief justice, Johnston and Smith
associate justices, II Is said:
This was a suit brought by the
state of Kansas, on the relation
OF the county attorney of Clay
county, against the board of trus-
tees of the asylums for the In
sane, to enjoin the latter from
accepting, on behalf Of the state
OF Kansas, deeds conveying to the
state certain lands near the city
OF Parsons, for the purpose of
erecting an asylum for the In.
sane thereon, and from certifying
to the state auditor any vouchers
on which warrants might be Is
sued on the state treasurer TO pay
the owners of said real estate the
price of the same; and, further,
to restrain said trustees from
making any contract In the name
or on behalf OF the state OF Kan
sas for the construction of build
ings TO be used as an insane asy-
lums at or near the city of Par
sons. Judgment was entered on
the pleadings In the district court
In favor OF the state, and q per-
petual injunction decreed in ac-
cordance with the prayer of the
petition.
On page S31 (G2 Kan.), 1t Is said:
1ne power OF county attorney
TO institute this attlon In the
court below Is denied by plain
tiffs In error. The statute defln-
ing the duties Of that officer Is
quite comprehensive. (Gen. Stat.
1899, par. l71i; Gen. Stat. 1897,
ch. 80, par. 81 II is his duty to
prosecute or defend, on behalf of
the state, under the laws of the
state, In which the state or his
county is party or Interested.
In this case Jurisdiction was OBJ
tanned over the persons consti-
tuting the board of trustees of the
asylums for tho insane in Clay
county, and the cause then being
triable In that forum, the county
attorney was authorized to prose.
cute It.
In state OK rel. Roberts, county
ttorney, vs.. Lawrence, county treas
rer, so Kan. 707, II is saId
The state may maintain inJunc-
tion against public officer TO
restrain him from violation Of
his official duty, although other
remedies may be open. and he
may have given q sufficient bond.
1t has an interest in seeing that
the will of the legislature IL not
dIsregarded, and need not, as an
individual plaintiff must, show
grounds of fearing more specific
injury.
In State ex rel. Haskell, Governor.
!. Huston, Judge. ct al, Il Okla.
~, II is said:
However. In our judgment. the
county attorney of any county,
where proper service may be had
In such county, has the right to
institute such an action In the
name of the state, on his relation.
as was begun in the Logan county
district court, In the name Of the
state, on the relation OF the attor-
ney general, TO have the charter
OF the Prairie OIL and Gas COM
pany, cancelled, which action on
the part of such county attorney
'ould neither be subject to the
control OF the governor, nor to be
dismissed at his discretion. The
statutes heretofore referred to
appear to make the attorney gem
eral the legal adviser OF the state
Ulcers, and the proper person to
rosecute and defend actions in the
Supreme Court In which the state
Is a party or interested, and, when
directed by the governor or either
branch of the legislature, TO APP
pear and prosecute any action.
civil or criminal. IN any court, or
before any officer, In which the
late Is a party or interested, and
that Il is the duly Of the county
attorney, ext ept as otherwise pro-
yided, 10 prosecute and defend all
ctlons, both civil and criminal, In
the district or county courts, In
'hich the state Is party or In
terested.
Nor may the attorney general. when
irected by the governor to appear
nd prosecute or defend" any action,
ismlss sue. action independent OF
he county attorney. State vs. t;nr-
ek, SIS w. Va. TOO; State vs.. Horn