Cosson v. Bradshaw
| Decision Date | 03 June 1913 |
| Citation | 141 N.W. 1062,160 Iowa 296 |
| Parties | GEORGE COSSON, Attorney-General of the State of Iowa Plaintiff, v. C. B. BRADSHAW, Judge of the 17th Judicial District of the State of Iowa Defendant |
| Court | Iowa Supreme Court |
Appeal from Marshall District Court.--HON. C. B. BRADSHAW, Judge.
PROCEEDINGS by certiorari to test the right of the Attorney-General to appear before the grand jury in the county of Marshall. The right was denied by the court below. The order denying the right is Annulled.
Order Annulled.
George Cosson, Attorney-General and JOHN FLETCHER, Assistant Attorney-General, for plaintiff.
Anthony C. Daly, County Attorney, for defendant.
It appears that on the 18th day of March, 1913, the plaintiff herein filed in the district court of Marshall county, Iowa the following motion:
In the District Court of Marshall County, Iowa.
In the Matter of the Impaneling of the Grand Jury for the March Term of the District Court.
Motion for Permission to Appear before the Grand Jury.
Comes now George Cosson, the duly elected, qualified and acting Attorney General of the state of Iowa by John Fletcher, the duly appointed and acting Assistant Attorney General of the state of Iowa and moves the court that he be permitted to appear in person and by John Fletcher, his assistant, before the grand jury of this county to present evidence in matters in which the state of Iowa is a party and interested, to wit Evidence that certain crimes have been committed in violation of the laws of the state of Iowa that it is the duty of the grand jury to investigate. That unless permitted to appear before said grand jury a proper presentment of the evidence of the commission of certain crimes will not be made to such grand jury and the interests of the state of Iowa will be jeopardized.
That on the same day Anthony C. Daly, county attorney of Marshall county, filed the following objections to the appearance of the Attorney General, before the grand jury of that county:
The State of Iowa v. Dell Peeper.
Objections to Granting Leave to the Attorney General to Appear and Prosecute in the Grand Jury.
The county attorney appearing showeth to the court the very great probability of the futility of the work of the grand jury and the waste of the money of the county consequent thereupon if any other than the duly authorized attorney is in the grand jury chamber in the investigation of the cause as in the caption hereof is entitled.
The sole desire of the county attorney is to preserve the regularity of procedure in the criminal investigation and to prevent the raising of questions hereafter tending to the impairment of the usefulness of that body in its hearings and presentments.
The county attorney has no wish nor thought to place obstacles in the path of the Attorney General in his work and makes no personal objection whatever. The county attorney is endeavoring herein to place beyond doubt the deliberations and the presentments of the grand jury and to prevent the court and the Attorney General from falling into error. The county attorney shows that the section of Code conferring so much authority upon the Attorney General does not authorize the attorney to appear in the inquisitions of the grand jury of the county as the prosecutor. It is apparent that the Attorney General may appear in the courts and other tribunals, but the grand jury is neither a court nor a tribunal.
The grand jury is an informing and accusing body, rather than a judicial tribunal. It is a separate and independent body acting apart from the court after it is organized. A tribunal is the seat of a judge; the place where he administers justice; a judicial court; a bench of judges. The county attorney is of the opinion that, until the Legislature specifically authorizes the Attorney General to enter upon the work of the grand jury, he should not be permitted therein. Again the county attorney urges that his sense of duty impels him to prevent the Attorney General and the court from committing prejudicial error at the very threshold of the grand jury work for this March term.
That thereupon the following entry was made by the presiding judge of said court, the defendant herein:
Second day of March, 1913, term, it being March 18, 1913. In the matter of the grand jury for March term, 1913. Now, to wit March 18, 1913, grand jurors drawn, Fisher sworn as foreman, and grand jurors sworn. Defendant Dell Peeper appears in person and by counsel before the grand jury, and Ren Long appears by counsel and each waive all objections to grand jury, and each member thereof. J. H. Fisher appointed foreman of the grand jury. After the grand jury had been impaneled, the Assistant Attorney General of Iowa filed a motion that he, as a representative of the Attorney General, have permission by the court to appear before the grand jury for the purpose of presenting evidence to that body in matters in which the state of Iowa is a party and interested; that is, evidence that certain crimes have been committed in violation of the laws of Iowa. The county attorney appears and filed objections to such permission being granted, as shown by the writing filed with the clerk, and after argument with counsel for and against such motion, and the court having duly considered the same, the court overruled said motion, and denies the permission asked by the Attorney General, to which the said Attorney General at the time duly excepts.
The matter is brought to this court on certiorari. The question here presented is whether the district court exceeded its jurisdiction or acted otherwise illegally in denying permission to the Attorney General to appear before the grand jury of Marshall county under the showing made in this case.
Chapter 9 of the Acts of the Thirty-Third General Assembly regulates the duties and powers of the Attorney General of this state in so far as the duties and powers of the Attorney General are regulated by statute. Section 3 of said chapter provides:
It shall be the duty of the Attorney General:
1. To appear for the state, prosecute and defend all causes in the Supreme Court in which the state is a party, or interested.
2. When requested to do so by the Governor, executive council, or General Assembly, or when, in his judgment, the interests of the state require, he shall appear for the state before any other court or tribunal, prosecute or defend all actions and proceedings, civil or criminal, in which the state may be a party or interested.
5. To exercise supervisory powers over county attorneys in all matters pertaining to the duties of their office, and, from time to time, require of them reports as to the condition of public business entrusted to their charge.
Chapter 17 of the Acts of the Thirty-Third General Assembly, section 2, defines the duties of the county attorney.
Sec. 2. It shall be the duty of the county attorney:
1st. To diligently enforce, or cause to be enforced in his county, all the laws of the state, actions for a violation of which may be commenced or prosecuted in the name of the state of Iowa or by him, as county attorney, except such laws, the enforcement of which, is exclusively enjoined upon others, by statute.
2d. To appear for the state and county in all cases, and proceedings in the courts of his county, to which the state or county is a party, and in the Supreme Court in all cases in which the county is a party.
3d. To appear and prosecute all preliminary hearings before a justice of the peace upon charges triable upon indictment.
4th. To appear and prosecute misdemeanors before justices of the peace, whenever he is not otherwise engaged in the performance of official duties.
8th. To attend the grand jury whenever necessary for the purpose of examining witnesses before it, or of giving it legal advice, or to procure subpoenas or other process for witnesses; to prepare all bills of indictment; but he must not be present when an indictment is considered or found.
Section 5265 provides:
Such attorneys shall be allowed at all times to appear before the grand jury on his own request, for the purpose of giving information relative to any matter cognizable by it; but neither he nor any other officer or person, except the grand jury, must be present when the question is taken upon the finding of an indictment.
The duties and powers of the Attorney General are defined by statute, and we take it that the Legislature has given to him by the statute all the powers that in their judgment he ought to be permitted to exercise, and they imposed upon him all the duties which, in their judgment, should be imposed upon him as such officer. It is claimed, however, that he has large common-law powers which are not provided for in the statute, having their origin somewhere in the early dawn of civilization, but under the revision of 1860 (section 124), which defined the duties and powers of the then Attorney General, and which read as follows: "The Attorney General shall appear for the state and prosecute and defend all suits and proceedings, civil and criminal, in which the state shall be a party or interested when requested to do so by the Governor, or other state officers and shall prosecute and defend for the state all causes in the Supreme Court in which the state may be a party, or interested"--this court has held that he had no power to appear and prosecute a criminal case in any court except the Supreme Court, because no other power was given him by the...
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