Capitol Stages, Inc. v. State ex rel. Hewitt

• Citation: 157 Miss. 576,128 So. 759
• Decision Date: 02 June 1930
• Docket Number: 28565
• Court: United States State Supreme Court of Mississippi
• Parties: CAPITOL STAGES, INC., et al. v. STATE ex rel. HEWITT, DIST. ATTY

128 So. 759

157 Miss. 576

CAPITOL STAGES, INC., et al. v. STATE ex rel. HEWITT, DIST. ATTY

No. 28565

Supreme Court of Mississippi, Division B

June 2, 1930

(Division B.)

1. DISTRICT AND PROSECUTING ATTORNEYS. Statute held to confer no common-law powers on district attorneys, since they had no such powers at common law (Hemingway's Code 1927, section 3701).

Laws 1918, chapter 238, section 1 (Hemingway's Code 1927 section 3701), provides that the attorney-general and the several district attorneys are authorized to institute or defend suits arising out of any act or order of the tax commission or railroad commission, and are also clothed with such other authority as is conferred upon them at common law.

2 ATTORNEY-GENERAL.

Statute held effective to confer on attorney-general common-law powers (Hemingway's Code 1927, section 3701).

3. DISTRICT AND PROSECUTING ATTORNEYS.

Powers of district attorneys can neither be increased nor diminished by attorney-general.

4. DISTRICT AND PROSECUTING ATTORNEYS.

Powers of district attorneys are statutory, and they cannot encroach on powers of attorney-general (Hemingway's Code 1927 sections 1465, 3701).

5. DISTRICT AND PROSECUTING ATTORNEYS. District attorneys have no authority to represent state in litigation outside of counties of their district (Hemingway's Code 1927 sections 1465, 3701). Code 1906, section 1661 (Hemingway's Code 1927, section 1465), provides that it shall be duty of district attorney to appear in circuit court and prosecute for state, in his district, all criminal prosecutions and all civil cases in which state or county within his district may be interested, but, if two or more counties are adversely interested, district attorney shall not represent either, and it is also made his duty to institute cases in name of state against any person or corporation for any violation of the laws of the state in order to enforce any penalties, fines, or forfeitures imposed by law in any court of his district having jurisdiction with like effect as if suit was instituted by attorney-general.

6. DISTRICT AND PROSECUTING ATTORNEYS.

District attorney has no authority to represent state in litigation involving subject-matter of state-wide interest, as distinguished from local interest, except as provided by statutory clause relating to actions to enforce penalties, etc. (Hemingway's Code 1927, sections 1465, 3701).

7. ATTORNEY-GENERAL.

As to litigation, subject-matter of which is of state-wide interest, attorney-general alone has right to represent state (Hemingway's Code 1927, section 3701; Constitution 1890, section 173).

8. DISTRICT AND PROSECUTING ATTORNEYS. State could not, on relation of district attorney, sue to restrain bus companies, having franchise from railroad commission to use highway, from continuing to use state highway, on ground they were wrongfully using highway to extent constituting public nuisance (Hemingway's Code 1927, sections 1465, 3701, 9297-9314).

Under act regulating common carrier motor vehicles, Laws 1926, chapter 128 (Hemingway's Code 1927, sections 9297-9314), defendant bus companies were granted by railroad commission certificates of convenience and necessity authorizing them to use, as common carriers, highway 51, which is state highway under Constitution 1890, section 170, placing such highways under control of state highway commission for construction and maintenance, and which runs through several counties constituting different judicial districts.

9. INJUNCTION.

Where facts showing district attorney had no authority to bring suit for injunction appeared on face of bill, action could be abated by demurrer.

10. EQUITY.

Where facts showing want of capacity to sue appear on face of record, it can be taken advantage of by demurrer.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Pike county, HON. R. W. CUTRER, Chancellor.

Suit by the state, on the relation of F. D. Hewitt, district attorney of the Fourteenth Judicial District, against the Capitol Stages, Inc., and another. Defendants' demurrer to the bill was overruled, and defendants appeal. Reversed and dismissed.

Reversed and dismissed.

J. Morgan Stevens, of Jackson, and H. V. Wall, of Brookhaven (Thos. L. Bailey, of Meridian, amicus curiae) for appellants.

A district attorney has no authority to institute or prosecute this suit or to pledge the state as a litigant except upon the relationship and at the instance and request of the attorney-general of Mississippi.

Section 1465, Hemingway's Code, of 1927; Section 1661, Code of 1906; Patterson v. Temple, 27 Ark. 202, Syllabus 5; Ware v. Regent's Canal Company, S. C. 28 L. J. Ch. 154, 5 Jur. (N.S.) 25, 7 W. R. 67, 3 De Gex & Jones, 212, 44 Eng. Reprint 1250, Before the Lord Chancellor (1858).

The power of the attorney-general is limited by statute, then by the same token and by greater force of reason, the power of the district attorney is measured by the statute. He has no implied power.

6 C. J. 805; Ex parte State of Alabama, 21 So. 210; In re Stephenson (W.Va.), 64 S.E. 935, 23 L.R.A. (N.S.) 691; Moore v. Bell, Attorney-General, Sup. Court of Texas, 66 S.W. 45.

Hugh V. Wall, of Brookhaven, for appellants.

The district attorney has no authority to bring this suit.

Chapter 20 of Hemingway's Code of 1927, sets out the duties and the authority of district attorneys in the state of Mississippi.

Section 1465 of Hemingway's Code of 1927, limits the power of district attorneys to bring suits in the name of the state of Mississippi in the chancery court to the collection of penalties, fines and forfeitures imposed by law. There is no authority given a district attorney to bring suits except that contained and provided for in section 1465.

Thos. L. Bailey, of Meridian, amicus curiae.

Chapter 238, Laws of 1918 (section 3701, Hemingway's Code 1927) does not clothe the district attorney with common-law rights.

Chapter 238 of the Laws of 1918, was not intended to enlarge the powers of the district attorney except as relates to the institution or defense of suits arising out of any act or order of the tax commission or the Railroad Commission affecting the laws and revenues of the state. An investigation of the policy of the state with respect to district attorneys as reflected in legislative enactments, discloses a general tendency on the part of the state to limit the power and authority of the district attorney to those powers conferred in section 1465, Hemingway's Code of 1927, section 1661, Code of 1906; Section 173 of the Constitution and section 174 of the Constitution; Mississippi Constitution, Ethridge, pages 320-21.

Geo. T. Mitchell, Attorney-General, and Forrest B. Jackson, Assistant Attorney-General, for the state.

The right of the district attorney to sue in the name of the state in a representative capacity cannot be raised by demurrer. Section 1706, Hemingway's Code 1927; Thompson v. First National Bank of Jackson, 85 Miss. 261, 37 So. 645; Thornton v. Alliston, 12 S. & M. 124; Ascher & Baxter v. Ed. Moyse & Company, 101 Miss. 36, 57 So. 290.

The district attorney has the right to bring this action in the name of the state of Mississippi on the relationship of said district attorney.

Section 3701, Hemingway's Code 1927; Chapter 238, Laws of 1918; State v. Key, 93 Miss. 115, 46 So. 75; Board of Supervisors of Lauderdale County v. Bank, 117 Miss. 132, 77 So. 955.

The state had the right to bring this suit.

State v. Mobile, etc., Railroad Company, 86 Miss. 200, 38 So. 732; Griffith's Mississippi Chancery Practice, section 129, page 131, section 135, page 136; 6 C. J., 805 and 809; 2 R. C. L. 913, 915; People v. McCue, 88 P. 899, 150 Cal. 195; Eble v. State, 93 P. 803, 77 Kan. 179, 127 A. S. R. 412; People v. Decatur, etc., Ry. Company, 120 Ill.App. 229; Doan v. Lake, etc., Ry. Company, 165 Ill. 510; State ex rel. v. Howe Scale Company, 166 S.W. 328, 182 Mo.App. 658.

As to the authority of the district attorney under his common-law powers to institute a suit in equity for an injunction to abate a public nuisance which is the effort exerted by the district attorney in this case, we refer to:

20 R. C. L., section 21, page 398; 20 R. C. L., section 90, page 476.

Argued orally by H. V. Wall and J. Morgan Stevens, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for appellee.

OPINION

Anderson, J.

The state, on relation of F. D. Hewitt, district attorney of the Fourteenth judicial district of this state, filed its bill against the appellants, the Capitol Stages, Incorporated, and the Pickwick Greyhound Lines, Incorporated, charging that they were wrongfully and illegally using state highway No. 51, which runs through the counties of Pike, Lincoln, and Copiah, in said district, to such an extent as to constitute a public nuisance. The bill prayed for an injunction, restraining appellants from so continuing to use the highway, and for a decree against appellants in the sum of ten thousand dollars for damages already done the public by such use. Appellants demurred to the bill, which demurrer was by the court overruled, and an appeal to the supreme court was granted to settle the principles of the cause.

Perhaps the appellee's case could not be more clearly and succinctly stated than by setting out the bill, which, leaving off its formal parts, follows:

"Comes the complainant, the state of Mississippi by F. D. Hewitt the legally elected qualified and acting district attorney of the 14th Circuit Judicial District of Mississippi, who prosecutes for and on behalf of the state of Mississippi, the said circuit court district embracing the counties of Pike, Lincoln and Copiah and files this its amended bill by leave of the court, first...