Mcquesten v. Attorney General

• Decision Date: 05 January 1905
• Citation: 72 N.E. 965,187 Mass. 185
• Parties: McQUESTEN v. ATTORNEY GENERAL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 185

72 N.E. 965

McQUESTEN v. ATTORNEY GENERAL et al.

Supreme Judicial Court of Massachusetts, Essex.

January 5, 1905

COUNSEL

H. H. Buck, for petitioner.

Moulton Casey, Jones & Darling and U. G. Haskell, for respondents.

OPINION

KNOWLTON, C.J.

This is a petition for a writ of prohibition to prevent the trial in the superior court of an appeal from a decree of the court of land registration in favor of the petitioner upon an application for the registration of his title to certain land in the town of Marblehead. This appeal was taken by the Attorney General, acting by authorized attorneys, who also represented the town of Marblehead. The principal contention of the present petitioner is that such an appeal could be taken only by the Attorney General, or Assistant Attorney General, or district attorney, in person, and that the Attorney General could not authorize other attorneys to take and enter an appeal which would give the superior court jurisdiction.

On the original petition there was a question whether there was a public landing place over the land described, and notice of the application was accordingly given to the Attorney General, under Rev. Laws, c. 128, § 31. The interests of the public were involved, and the commonwealth was a proper party. Under section 13 it had a right to appeal from an adverse decision. The Attorney General entered an appearance personally in the court of land registration, but filed no claim. Afterwards, with the consent of the petitioner, who reserved all legal rights, attorneys representing the town presented the claim of the commonwealth in that court, under authority in writing from the Attorney General. The petitioner objected to the authority of these attorneys to take an appeal for the Attorney General, and moved to dismiss the appeal. The motion having been denied this petition was brought.

Previously to the enactment of St. 1896, p. 482, c. 490, it had long been the practice of the Attorney General, in certain civil cases to which he or the commonwealth was a party, to be represented by attorneys procured and paid by relators, or other private parties who had a special interest in the maintenance of the public rights in question. Attorney General v. Metropolitan Railroad Company, 125 Mass. 515 28 Am. Rep. 264; Attorney General v. Consumers' Gas Co., 142 Mass. 417, 8 N.E. 138; Attorney General v. Tarr, 148 Mass. 309, 19 N.E. 358, 2 L. R. A. 87; Attorney General v. Reverse Copper Company, 152 Mass. 444, 25 N.E. 605, 9 L. R. A. 510; Attorney General v. Abbott, 154 Mass. 323, 28 N.E. 346, 13 L. R. A. 251; District Attorney v. Lynn & Boston Railroad, 16 Gray, 242; Attorney General v. Butler, 123 Mass. 304; Attorney General v. Parker, 126 Mass. 216; Attorney General v. City of Boston, 123 Mass. 460. This had been done with the approval of the court. Parker, Commonwealth's Attorney, v. May, 5 Cush. 336-338; Com. v. Boston & Maine Railroad, 3 Cush. 25-48. The rule as to criminal prosecutions has always been different. Com. v. Knapp, 10 Pick. 477-481, 20 Am. Dec. 534; Com. v. Williams, 2 Cush. 582-584; Com. v. Scott, 123 Mass. 222-234, 25 Am. Rep. 81. But even in civil cases the court has recognized the desirability of having public interests actively represented in court by a public officer. Burbank v. Burbank, 152 Mass. 254-256, 25 N.E. 427, 9 L. R. A. 748, and cases above cited. Emphasis was given to this view in Attorney General v. Adonai Shomo Corporation, 167 Mass. 424, 45 N.E. 762, which was an information brought in the name of the Attorney General, but not actively prosecuted by him. A little before the argument of this case in the full court, but after the hearing before the single justice, St. 1896, p. 482, c. 490 (Rev. Laws, c. 7, §§ 1-9), was passed, which enlarged and more particularly defined the duties of the Attorney General. Under this act the Attorney General appears in all the courts of the commonwealth, not only for the commonwealth, but for the Secretary, the Treasurer, and the Auditor, and for all heads of departments, state boards and commissions, in all suits and other civil proceedings, except upon criminal recognizances and bail bonds, in which the commonwealth is a party or interested, or in which the official acts and doings of said officers are called in question. This put an end to the practice, which had previously prevailed to some extent in state boards and commissions, of employing private counsel in public matters at the expense of the commonwealth. The statute also provides that 'all such suits and proceedings shall be conducted by him or under his direction.' In this way official responsibility for these suits and proceedings, at all stages of their progress, is secured. The statute also gives the Attorney General power to appoint such assistants as the duties of the office require, and, with the approval of the Governor and council, to fix their compensation. He may also, subject to like approval, employ such additional legal assistance as he may deem necessary in the discharge of his duties. In this way a very large and important official responsibility rests upon the Attorney General. All of this business in which...