Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-08

preliminary in their nature and were
waived by filing the answer" In the
present case, however, this question
is squarely presented by the demur-
rer and the condition of waiver does
not appear. This will distinguish t
from the case of State v. Chadwick.
In the later case of State ex rel v
Cook, 80 Or 977, the question was
more directly presented. That was a
case Of quo warranto to determine
the title to the Office of road super
visor The complaint was signed by
private counsel only, but before the
case was brought on for hearing the
district attorney had his appearance
noted on the journal. After reviewing
the authorities, Justice WOlyerton
laid down he rule in these terms
"but unless there is some showing
either by appropriate allegations or
by the official signature indicating
that the act has been commenced and
is being prosecuted by the state Off
Ger, the complaint cannot be held
sufficient" In People " Oakland
Water Front Co., 11S Cal, 234, JUS
tice Beatty held that the proper prac-
tice would have been followed if The
defendant had moved in the district
court to dismiss the information upon
the ground, among others, that the
attorney-general had no authority or
power to institute or prosecute pro-
ceedings in the name or on behalf Of
the people of the state. Although
the question was not raised in this
way in the district court, the supreme
court held it to be a jurisdictional
question and proceeded to determine
the matter in the supreme court.
True enough, the court in that case
held that, under the California prac-
tice, the encouragement had au-
thority to commence the action but
the principle applicable in this case
is that the question of his authority
is one of jurisdiction which can be
urged by demurrer as in the case at
bar.
The matter of jurisdiction involves
two elements: first, jurisdiction over
the person of the defendant and;
second, jurisdiction over the subject
matter or the right to try the par
ticular case presented to the court.
Here by their general appearance
the defendants have submitted their
persons to the jurisdiction of the
court, but the court has no power to
try the case presented, it being de-
fective for want of proper authority
of the officer undertaking to COM
mence it. In other words the condi-
tion and situation disclosed by the
complaint are not those in which the
power of the court may be called
into action. The rights of citizen
may not be called in question except
in the manner provided by law
Many cases might be cited illustra-
tive of the principle that it must ap-
pear in some way in the initial
pleading that a case of the kind in
question has been commenced by the
authority of the proper officer but
these two will suffice. Mallory "
Whitney, IA Wall GU. S. 434; United
States " Throckmorton, SO U. S. ST.
The relators seem to concede this
principle by enlisting the services OF
the attorney general but the ques-
ton here is whether he was the
proper officer. If there were no 9th
er provisions in the statute except
those of sections 2670 L. o. L. de-
scribing the duties of the attorney
general, it would be possibly correct
to say that he could commence the
action by virtue of his common Law
powers; but the legislature as we
have already shown has seen fit tC
invest the district attorney with the
common law power relating to the
4 question involved. Hence we decide
that the action is not properly com
mnced and that the demurrer wa!
rightly sustained.
] The decision of the court below IL
affirmed.