The Waterbury Democrat., 1938-07-01


 hanging, hence imminent, impend- ing" In that sense, as soon as crime has come to light the cause is pending. The prosecution is imminent and impending and if the cause is of such a nature, that 1t is within the jurisdiction of the superior court 1t is cause pend- ing before the superior court.
 Definition of Party
 The word party" in the phrase wherein the state is party does not mean a party of record. It means simply the person whose right has been violated. The whole phrase therefore refers to a cause wherein the state is the person whose rights have been violated irrespective of whether a court action has been started so that it has become party of record.
 Accordingly the reasonable in- depreciation of the statute is to the effect that special states at- torney may be appointed by the court whenever it appears that the states attorney is disqualified to act with reference to any crime which is supposed to have been committed or with reference to any cause of action in which the rights of the state are claimed to have been violated when the prosecu- tion of such cause of action is im- minent or impending in the super for court.
 On the allegations of the plea in this case that was the situation when the defendant was appointed special states attorney. It was ap- parent that it was at least sus- pected that a cause of action in favor of the state existed and that 1t was imminent that such cause of action would come before the superior court at Waterbury. It might fairly be said, therefore, that such cause of action to which that state was a party was pend- ing in that court. Accordingly if the states attorney were disquali- fled to act in such a cause it was proper under the statute to appoint special states attorney.
 Not Disqualified
 The second main contention of the relator is that the regular states attorney was not disquali- fled because tho regular states at- torney for New Haven county. MT. Hoyt, was not disqualified. This raises the question as to whether the states attorney for New Ha- ven county has authority to act as such in the judicial district of Waterbury, and this calls for an intcrpreta- tion of Section 1633 Cum. Supp. 1885. That section makes it clear that the states attorney at Water bury has the same powers and du- ties within the judicial district of Waterbury that other states at- torneys have in their respective counties. Although there is a pro- vision whereby the states attor- ney for New Haven county may request him to assist at criminal terms in New Haven, when he acts at Waterbury he is states at torney and in no sense an assist ant to the states attorney for New Haven county.
 If the states attorney for New Haven county had power to pros- ecute in the district Of Waterbury there would be a conflict of au- thority between the two. If both could act, one might institute prosecution which was against the others better judgment and then the other would have authority to terminate that action. Such a sit uation would be intolerable. The statute should not be so construed as to permit 1t if it is open to any other Interpretation The most na- tural interpretation is that the in- tention of the legislature expressed therein is that the judicial district of Waterbury is a jurisdiction on exactly the same plane as are the respective counties of the state and that the states attorney at Waterbury has full and exclusive power to prosecute crime within that district The states attorney for New Haven county has power to prosecute for New Haven county outside the District of Waterbury. but has no concurrent power with in the district of Waterbury. It follows that when Sec. 829 d speaks of a states attorney "in any county" being disqualified 1t con- templates that the district of Wa terbury IS a county by itself inde- pendent of the rest of New Haven county. Accordingly 1t was not necessary for 1t to appear that MT. Hoyt was also disqualified before special states attorney might be appointed at Waterbury.
 Court Jurisdiction
 Another consideration bearing on the whole situation is this: It is to be noted that the statute, Sec 829 does not provide nor con- template that the appointment of a special states attorney shall be made in a criminal case. The gist of the statute lies in the final clause: said court may appoint a special attorney for the prosecu- ton of such cause" That is, 1t Is not essential that any case be pending in the court to give the court jurisdiction to make the ap- pointment. All that is necessary to give the court jurisdiction is that 1t appear that the states at- torney is disqualified. The court is not coram non judice because no particular criminal action is pending in the court at the time the order is entered.
 Accordingly If 1t were true that because of narrow interpreta- ton to be placed upon Section 829 d the legislature has made no provision for the appointment of & prosecuting officer in @ case which has not actually been insti-