The Waterbury Democrat., 1938-07-01
Initial Attacks On
 Special Prosecutor
 End In Dismissal
Quo Waranto Proceedings May Provide Basis of Test Before Highest Tribunal in U. S.-Judge Rules
 Acorn Within Rights to Prosecute


 h the quo warranto proceedings which were dismissed by Judge In- ylis yesterday. The ruling of Judge (nglis upholds the legality of the of Hugh Acorn as special prosecutor here. The text of the decision follows:
 MEMORANDUM ON DEMURRER
 TO PLEA
 This information in the nature of quo warranto Is brought to test the authority of the defendant to act as special states attorney in the filing in the superior court at Waterbury, of an information charging crime against the relator and others. The plea alleges, in substance, that, on February 4, 1888, Lawrence L. Lewis, the states attorney at Waterbury and Will liam B. Fitzgerald, the assistant states attorney, made application to the court reciting that they were disqualified to act with refer ence to the further investigation and prosecution of possible crimes in connection with the affairs of the City of Waterbury and pray ing that a special attorney be ap- pointed by the court for the pur- pose of conducting such investiga- tion and prosecution. It further alleges that thereupon the court appointed the respondent Hugh M. Alcorn as such special states attorney and thereafter the re- spondent took the oath prescribed by law. The contention of the re- lator on this demurrer is in brief that certain conditions prerequisite to the appointment of such spe- cial states attorney as provided in Cum. Supp. 1897. Sec. 82o q did not exist in connection with the appointment of the defendant.
 Section 829
 Said section 829 50 far as it relates to the present controversy reads as follows:
 Special Prosecuting Attorney.
 If the states attorney or assist
 ant states attorney in any
 county shall be absent or dis
 qualified to act in any cause
 pending before the superior
 court, wherein the state is .
 party, said court may appoint .
 special attorney for the prose-
 cution of such cause"
 The first contention of the re- lator is that this section Is to be so interpreted that before such special states attorney is ap- pointed there must be a criminal action pending in the sense that either an indictment or an infor- nation has been filed in the court, and that, in this case, such was not the situation at the time the appointment was made.
 If such were the correct inter- pretation of the statute, the stat ute itself would be practically nuga- tory. If states attorney is dis qualified to act in the prosecution of case he is certainly disquali- fled to decide whether prose- cution should be instituted. He is disqualified to sign or file an in formation. If no one may be ap- pointed a special states attorney until after an information is filed there is no one qualified to insti- t,,fa tho ,,rnraodiyon oysd tho criy,, inal goes unpunished.
 It IS no answer to say that pro- ceedings may be instituted in lower court and bound over to the superior court because it has so long been recognized and settled procedure in this state for criminal actions to be instituted on infor- nations filed by the states attor- neys in the superior court, that 1t Is hardly to be imagined that the legislature in adopting said section 829 d intended to do away with that procedure where states at- torney was disqualified to act. Likewise it Is no answer to say that proceedings may be had un- der Section 69l, General Statutes, Rev. 1890. because that section it. self requires that the proceedings be initiated by a qualified states attorney and, moreover, it is con- trolled by the provisions of Sec tion 679 which apparently limit its use to cases of corrupt practices.
 Prosecution Hampered
 Accordingly 1t is clear that if Section 829 q is construed in such a way that no special states attor- ney may be appointed until after an information has been filed in the case in which he is to act, then the prosecution of crime will be greatly hampered, to put 1t mildly. "The intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute. When one construction leads to public mis- chief which another construction will avoid, the latter is to be fa- vored unless the terms of the statute absolutely forbid. A statute should be construed, having in view the nature and reason of the remedy and the object of the stat ute, in order to give effect to the legislative intent"
 Bridgeman vs. Derby, l04 Conn. 1, 8.
 With these considerations in mind 1t Is apparent that the true interpretation of section 829 d is quite different from that for which the relator contends.
 The wording of the statute is "If the states attorney shall be absent or disqualified to act in any cause pending before the su- perior court, wherein the state is a party" A "causc" as used in the statute is the equivalent of a cause of action. That is, 1t Is a set of facts upon which it appears that a right has been violated or wrong committed Tn this sense when A