Daily capital journal. (Salem, Oregon) 1903-1919, 1912-01-06

.Naa
which the state is a party or inter-
asted. and he shall. when requested
bv any state board, or board oil truS-
tees or by the governog or secretary
of state or state treasurer appear
NJ rosecute. or defend any action SUIT
matter. cause, or proceeding in any
court in which the state is party OF
interested; and he shall when re-
ouested, consult and advise with the
district attorneys in all matters per
tanning to their official duties, II
ia the REALTORS contention, in effect
that although the district attorney
before the creation of the office ol
attorney-general, had authority ana 1t
was his duty to commence and pros
ecute the kind of actions in question:
vet when the Legislature in 1881
created the office Of encouragement
that officer at once, by virtue OF MS
office. was vested with exclusive
mower in such matters, They argue
that the encouragement has all the
mowers belonging to his office at
common law and cite many author
tiles to that effect A careful exam
ination. however, of all the citations
shows merely that the powers eXer-
cised by an attorney-general at COM
mon law are preserved in some form
at the present day. There is no ef-
ficacy in the mere words, attorney
general" to overcome the direct ana
express provisions of the statute
comforting the power in question
upon another officer. In the case OF
the United States " San Jacinto Tin
Co. 125 U. S. 25S, 3O7, Justice Field
vevry aptly says: 81 do not recog-
nize the doctrine that the attorney
general takes any power by virtue of
his office except what the cnstitu-
ton and the laws confer. The pow
ers of the officers of England are
not vested in the executive officers
of the United States government. 1t
is the theory, and | may add, the
glory of our institutions, that they
are founded upon law, and that no
one can exercise any authority over
the rights and interests of others eX-
cept pursuant to and in the manner
authorized by law"
To sustain the contention of the
REALTORS would require us to hold
that the act creating the Office of at
toney general repeals by implica-
tion the provisions of the chapter
just noted requiring actions of this
kind to be commenced and prOseCut-
ed by the district attorney. In the
language of Justice Mcbride in the
State eX rel V. Malheur county
court, "a Or. 255, 1O1 Pac. 9O7, 1O9
Pac. 446, "a repea! by implication
only arises when both statutes can
not be reconciled with each other by
any reasonable Interpretation, or
where there is a clear intent shown
by the terms of the latter act that il
shall supersede the other. Re
peals by implication are not favored
and repugnancy between two stat
utes should be clear before a court
is justified in holding that a latter
statute impliedly repeals an earlil
one" 1t is our duty therefore, if
possible, to reconcile these two stat
utes so that both may stand. Bear
ing in mind then that under the re-
quirements of Secs. 96S L. o. L., in
the very words themselves, it is stat
ed that the actions of the kind in
question shall be commenced and
prosecuted by the prosecuting attor-
ney of the district where the sare
are triable and that under Sec. 1863
L. 0. L. it is the duty of the proper
prosecuting attorey to commence
such action whenever he has reason
to believe that cause of action ex-
lists and can be proved, we turn to
the provisions of section 2670 describ-
ing the duties of the attorney-gen-
eral. In respec to actions, his func-
tions are summed up in the injunc-
ton that he shall appear, prosecute
or defend in an action in which the
state is party or interested. The
word commence" in respect to ac-
tions is not used in that section and
his only authority to begin an action
is found in the words appear" or
prosecute. Constituting together
for the purposes of this case the sec
tions describing the duties of the two
offices, we find that the attorney-gen-
eral may with all consistency to the
duties of the district attorney appear
or prosecute or defend an action. In
common practice it often happens
that an attorney may appear in a
case and prosecute it to completion
long after it his been commenced bv
some other attorney. While. in its
broadest sense, the term prosecute"
might include the commencement of
an action yet, when, as in this case