Com. ex rel. Hancock v. Paxton
| Decision Date | 06 December 1974 |
| Citation | 516 S.W.2d 865 |
| Parties | COMMONWEALTH of Kentucky ex rel. Ed HANCOCK, Attorney General, Appellants, v. William B. PAXTON et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Atty. Gen., William W. Pollard, Legal Intern, Frankfort, for appellants.
William L. Willis, Dept. of Transp., Joseph J. Leary, Frankfort, Thomas L. Hogan, Frankfort, for appellees.
CULLEN, Commissioner.
The issue on this appeal is whether the Attorney General of Kentucky has standing to initiate and maintain a suit challenging the constitutionality of an Act of the General Assembly, against a state officer, department or agency charged with the administration of the Act. Holding that the Attorney General did not have such standing, the circuit court dismissed two suits (which were consolidated in the circuit court) brought by the Attorney General against the Kentucky Department of Transportation and its Commissioner, which suits, respectively, challenged the constitutionality of Chapter 123 of the Acts of 1972 (KRS 186.177) and Chapter 41 of the Acts of 1974 (KRS 186.178). 1 For the reasons hereinafter stated we disagree with this holding and are reversing the judgment.
Sections 91 and 93 of the Kentucky Constitution, providing for the office of Attorney General, state that his duties shall be such as may be prescribed by law, which suggests that his duties are solely statutory. However, he of course had the same duty as all other public officers of the state, embraced in the constitutional oath of office under Section 228 of the Constitution, of supporting the Constitution, and he is possessed of all common law powers and duties of the office except as modified by the Constitution or statutes. See Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829, 165 S.W.2d 820.
In the past, suits on a number of occasions have been brought by the Attorney General of Kentucky, against an executive officer or agency of the state, attacking the constitutionality of a statute, but the question of his standing to bring the suit was not put is issue. See Commonwealth v. Johnson, 292 Ky. 288, 166 S.W.2d 409; and Commonwealth ex tel. Hancock v. Holmes, Ky., 509 S.W.2d 258. So we have a question of first impression in this state. The question is whether the authority to bring such a suit is embraced within the constitutional, statutory or common law powers of the office.
As concerns the constitutional duties of the office, the only express one is that in the prescribed oath of office--to support the Constitution. The statutory powers and duties of the office are set forth in KRS 15.020. The most significant provisions of that statute, as concern the question here in issue, are that the Attorney General is 'the chief law officer of the commonwealth' and 'shall commence all actions or enter his appearance in all cases * * * in which the Commonwealth has an interest * * *.' At common law, he had the power to institute, conduct and maintain suits and proceedings for the enforcement of the laws of the state, the preservation of order, and the protection of public rights. 7 Am.Jur.2d, Attorney General, sec. 6, p. 7.
The decision of the circuit court that the Attorney General has no standing to institute an action of the kind here in issue is sought to be supported by the appellees (including intervening defendants whose interest is in upholding the validity of the Acts in question) on the basis that under both the common law and our statute, KRS 15.020, the powers and duties of the Attorney General are to represent the 'Commonwealth,' which the appellees interpret to mean the hierarchy of officers, departments and agencies heading the executive branch of the state government.
It is true that at common law the duty of the Attorney General was to represent the king, he being the embodiment of the...
To continue reading
Request your trial
-
EMW Women's Surgical Ctr., P.S.C. v. Beshear
...rel. Conway v. Thompson , 300 S.W.3d 152, 173 (Ky. 2009) (emphasis added) (alterations in original) (quoting Commonwealth ex rel. Hancock v. Paxton , 516 S.W.2d 865, 867 (Ky. 1974) ). "Indeed, the Attorney General has not only the power to bring suit when he believes the public's legal or c......
-
Cameron v. EMW Women's Surgical Ctr.
...the secretary shared that authority with the attorney general. See Ky. Rev. Stat. Ann. § 15.020 ; see also Commonwealth ex rel. Hancock v. Paxton , 516 S.W.2d 865, 868 (Ky. 1974) ("There is no question as to the right of the Attorney General to appear and be heard in a suit brought by someo......
-
Overstreet v. Mayberry
...Beshear v. Commonwealth Office of the Governor ex rel. Bevin , 498 S.W.3d 355, 361 (Ky. 2016).95 See also Commonwealth ex rel. Hancock v. Paxton , 516 S.W.2d 865, 867 (Ky. 1974) (stating that the Attorney General "is possessed of all common law powers and duties of the office except as modi......
-
State ex rel. Atty. Gen. v. Burning Tree Club, Inc., 138
...See, e.g., D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (1974) (en banc); Commonwealth ex rel. Hancock v. Paxton, 516 S.W.2d 865 (Ky.1974); State ex rel. Olsen v. Public Service Comm., 129 Mont. 106, 283 P.2d 594 (1955); State ex rel. Meyer v. Peters, 1......