State ex rel. Attorney General v. Reese

• Decision Date: 24 July 1967
• Docket Number: No. 8432,8432
• Citation: 430 P.2d 399,78 N.M. 241,1967 NMSC 172
• Parties: STATE of New Mexico ex rel. ATTORNEY GENERAL of New Mexico, Petitioner, v. George L. REESE, Jr., District Judge, Respondent.
• Court: New Mexico Supreme Court

Page 399

430 P.2d 399

78 N.M. 241

STATE of New Mexico ex rel. ATTORNEY GENERAL of New Mexico, Petitioner, v. George L. REESE, Jr., District Judge, Respondent.

No. 8432.

Supreme Court of New Mexico.

July 24, 1967.

Boston E. Witt, Atty. Gen., Joel M. Carson, Edward R. Pearson, Asst. Attys. Gen., Santa Fe, for petitioner

Alfonso G. Sanchez, Dist. Atty., Patricio S. Sanchez, Asst. Dist. Atty., Santa Fe, for respondent.

OPINION

MOISE, Justice.

The Attorney General has brought this action seeking to prohibit the respondent, district judge, from proceeding further without allowing petitioner to intervene in an action brought in the name of the State of New Mexico by the district attorney of the First Judicial District in and for Snata Fe County, wherein recovery is sought of certain amounts claimed to have been illegally paid as salary and per diem by the State to John F. Sudderth, Chairman of the State Highway Commission.

Although petitioner sought to intervene by petition in the district court and the court denied permission, it does not appear to us that intervention as a party is in fact sought. As we understand intervention, it is an act or proceeding whereby a person is permitted to become a party in an action between other persons, after which the litigation proceeds with the original and intervening parties. 67 C.J.S. Parties § 53, p. 974; § 21--1--1(24), N.M.S.A.1953. See State ex rel. Lebeck v. Chavez, 45 N.M. 161, 113 P.2d 179 (1941). The district court action was brought in the name of the State, and the attorney general, by his motion to intervene, sought to speak for the State in the action in lieu of the district attorney who it is asserted acted without authority. The true question before the district court was: Who is entitled to represent that State and control the litigation--the district attorney or the attorney general? The trial judge having decided that the district attorney should continue in the case as counsel for the State, the attorney general here seeks our intervention to prevent the court from proceeding.

We recognize some question to be present concerning the use of the writ of prohibition to require a court to accept one attorney as counsel in a case, rather than another. See State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665 (1911); State ex rel. Missouri Pac. R. Co. v. Williams, 221 Mo. 227, 120 S.W. 740 (1909). However, because of the analogy that might be drawn between a case wherein a party may be represented by an attorney not of his choice and a case where indispensable parties are absent, in which event prohibition may be proper to stop proceedings, State Game Commission v. Tackett, 71 N.M. 400, 379 P.2d 54 (1963), we conclude that prohibition is a proper means for determining the issue here.

That a court obtains no jurisdiction to proceed and render judgment in an action brought without authority has been held under a number of circumstances. See Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 47 S.Ct. 361, 71 L.Ed. 658 (1927); Meredith v. The Ionian Trader, 279 F.2d 471 (2d Cir. 1960); Sutherland v. International Ins. Co. of New York, 43 F.2d 969 (2d Cir. 1930); Courtney v. Campbell, 143 Okl. 5, 286 P. 872 (1930); Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897 (1961); Kennington-Saenger Theatres v. State, 196 Miss. 841, 18 So.2d 483, 153 A.L.R. 883 (1948). Prohibition is properly utilized to prevent a court from proceeding without jurisdiction. State ex rel. Townsend v. Court of Appeals, 78 N.M. 71, 428 P.2d 473 (1967); State ex rel. Board of County Com'rs of Grant County v. Burks, 75 N.M. 19, 399 P.2d 920 (1965); State ex rel. Prince v. Coors, 52 N.M. 189, 194 P.2d 678 (1948).

An additional consideration of which we take notice is the importance of the issue of relative powers and duties of the attorney general and the district attorney. It is of utmost importance that the conflict be settled, and promptly. State ex rel. Townsend v. Court of Appeals, supra. Accordingly, while recognizing that prohibition should issue only in particular cases and where circumstances are such as to make it imperative, we find in the instant situation good and substantial reasons for passing on the issues. Compare Montoya v. McManus, 68 N.M. 381, 362 P.2d 771 (1961).

We are thus brought to the question of whether the district attorney had authority to file the action on behalf of the State. This requires examination of our constitution and statutes.

Both the attorney general and district attorney offices are provided for in our constitution. In Art. V, § 1, one of the officers of the executive department is stated to be the attorney general. No grant of powers to the office is set forth here or anywhere else in the constitution. On the other hand, district attorneys are provided for in Art. VI, being the article on the judicial department. Art. VI, § 24, contains the following language:

'There shall be a district attorney for each judicial district, who * * * shall be the law officer of the state and of the counties within his district * * * and shall perform such duties and receive such salary as may be prescribed by law.'

We next note the pertinent statutes. Section 4--3--2, N.M.S.A.1953, sets forth the duties of the attorney general. It reads:

'It shall be the duty of the attorney general, except as otherwise provided by law:

(a) To prosecute and defend all causes in the Supreme Court in which the state is a party or interested.

(b) To prosecute and defend in any other court or tribunal, all actions and proceedings, civil or criminal, in which the state may be a party or interested, when, in his judgment, the interest of the state requires such action, or when requested to do so by the governor.

(c) To prosecute and defend all actions and proceedings brought by or against any state officer or head of state department, state board or commission or any employee of the state in his official capacity.

(d) To give his opinion in writing upon any question of law submitted to him by the legislature, or each branch thereof, the governor, secretary of state, treasurer, auditor or any other state official, elective or appointive, and the several district attorneys in the state on any subject pending before them or under their control with which they have to deal officially or with reference to their duty in office.

(e) To prepare drafts for contracts, bonds, and other instruments of writing which may be required for the use of the state, whenever requested to do so by any state officer.

(f) To promptly account to the treasurer of the state for all state funds received by him.

(g) To report to the governor and legislature the condition of his office, opinions rendered and business transacted of public interest, which report shall be submitted each two (2) years upon the date the regular session of the legislature begins.

(h) To keep a register of all opinions rendered by him and of all actions prosecuted and defended by him, and of all proceedings had in relation thereto.

(i) To attend and assist in the trial of any indictment in any county, on direction of the governor.

(j) To perform all other duties required by law.'

It is apparent that only subsections (b) and (c) have any direct application in the present situation. However, in addition to the specified powers, the attorney general asserts that he also has the powers inhering in the office at common law.

Since, in our view, the problem can only be resolved if the powers of the district attorney are considered together with those of the attorney general, we set forth parallel provisions of our statutes dealing with powers of district attorneys. These are in addition to the statement in Art. VI, § 24, that the district attorney is the 'law officer of the state,' and that he 'shall perform such duties and receive such salary as may be prescribed by law.'

We quote § 17--1--11(1), N.M.S.A.1953:

'It shall be the duty of the district attorney:

'1. To prosecute and defend for the state in all courts of record of the counties of his district, all cases, criminal and civil, in which the state or any county in his district may be a party, or may be interested or concerned;

'2. To represent the county before the board of county commissioners of any county in his district in all matters coming before such board, whenever he is requested to do so by the board of county commissioners, and he may appear before such board when sitting as a board of equalization without such request;

'3. To advise all county and state officers whenever such advice is requested;

'4. To represent any county in his district in all civil cases in which such county may be concerned in the Supreme Court, this provision, however, not to apply to suits brought in the name of the state.'

In addition to the two sections quoted, consideration must necessarily be given to § 4--3--3, N.M.S.A.1953, reading:

'Upon the failure or refusal of any district attorney to act in any criminal or civil case or matter in which the county, state or any department thereof is a party or has an interest, the attorney general be, and he is hereby authorized to act on behalf of said county, state or any department thereof, if after a thorough investigation, such action is ascertained to be advisable by the attorney general. Provided, that the attorney general shall, upon direction of the governor, investigate any matter or matters in any county of the state in which the county, state or any department may be interested. After such investigation, the attorney general be, and he is hereby authorized to take such action as, in his opinion, conditions warrant. The cost of such investigation shall be paid out of the general fund of the county wherein such investigation shall have been made, and the costs of any prosecution arising out of such investigation shall be paid as are the costs in cases prosecuted by district attorneys.'

Section 4--3--16, N.M.S.A.1953, is also pertinent. It...