State ex rel. Nolan v. District Court of First Judicial District
| Decision Date | 16 January 1899 |
| Citation | 55 P. 916,22 Mont. 25 |
| Parties | STATE ex rel. NOLAN, Atty. Gen., v. DISTRICT COURT OF FIRST JUDICIAL DISTRICT et al. |
| Court | Montana Supreme Court |
Petition by C. B. Nolan, attorney general of the state of Montana, for certiorari to the district court of the First judicial district, in and for the county of Lewis and Clarke, and Sidney H. McIntyre, judge thereof. Writ awarded.
The attorney general of the state, C. B. Nolan, prays for a writ of review of the action of the district court of Lewis and Clarke county in denying him the right to appear before a grand jury, and assist the county attorney of said county in conducting the examination of witnesses before such grand jury. The petition discloses that Hon. S. H. McIntyre, a judge of the district court of the First judicial district duly impaneled a grand jury to inquire into all public offenses cognizable and triable in Lewis and Clarke county that, in charging the grand jury, the judge of the said district court directed and ordered that no person, as legal adviser, should be consulted by the grand jury other than the county attorney of Lewis and Clarke county, and that, in the examination of witnesses before the grand jury, no person other than the said county attorney, as aforesaid, had the legal right and authority to appear before the grand jury. Petitioner avers that the grand jury was convened for the purpose of conducting an investigation respecting bribery charges, made by certain members of the sixth legislative assembly, consequent upon a senatorial election now pending before said legislative body, and that the judge of the district court expressly directed the attention of the grand jury to said bribery charges. It is further averred that the said legislative assembly, by resolution duly adopted requested and directed the attorney general to assist the county attorney of Lewis and Clarke county in the investigation of said bribery charges, and that, upon application to the said district court for permission whereby the attorney general might appear before said grand jury, the judge of said district court refused said application, and ordered and adjudged that the attorney general had no authority to appear before the grand jury, or in any way aid or assist in the investigation of the charges being inquired into. The petitioner says that, under the provisions of law as attorney general he has the right and authority to appear, before the grand jury, and to direct proceedings before said body; that his authority is superior to that vested in the county attorney; and that the order of the court, made as aforesaid, is without authority and void. The writ prayed for is one commanding the district judge to certify and return to the supreme court the records of the proceedings of said judge respecting said order, to the end that the decision may be reviewed and corrected by this court. The record certified to this court shows the impaneling and charging of the grand jury, and the action of the attorney general, together with the orders of the court,--all as substantially stated above.
O. McConnell, for respondents.
HUNT J. (after stating the facts).
The attorney general of the state is required by the constitution (article 7, § 1) to perform such duties as are prescribed in the constitution and laws of the state. Inasmuch, however, as there appear to be by the constitution no powers or duties specifically delegated to that officer whereby he is clothed with supervisory powers over other or inferior legal officers of the state, or any subordinate government therein, or directing him to assist such other and inferior officers in the performance of their duties, we must turn to the laws, there to ascertain what, if any, such duties, are prescribed, and what are the extent and limitations of his official authority.
Enumeration of his duties is made by section 460 et seq., art. 8, Pol Code. Among other requirements therein mentioned, he is to exercise a supervisory power over county attorneys in all matters pertaining to the duties of their offices, and from time to time to require of them reports as to the condition of public business intrusted to their charge. A duty to exercise supervisory power clearly implies the possession of supervisory power. There is therefore in the attorney general a right to oversee for direction, to inspect with an authority all matters pertaining to the duties of the county attorneys of the state, and to direct with superintending oversight the official conduct and acts of such officials; and it is his prescribed duty to exercise and perform these acts, and to do whatever may be necessary and proper to render his power in these respects effective. Duty to exercise general supervisory power over county attorneys would not, however, necessarily carry with it a duty to actively assist a county attorney in the discharge of his duties, for supervision might be exerted without actual assistance. Thus, in the preparation of an important argument, the attorney general might, under the power of supervision, communicate by letter with a county attorney, directing the pleadings to be relied on, or the line of argument to be pursued, and the general conduct of the trial, even though such course conflict with the county attorney's wishes; yet be absent throughout the whole proceedings so conducted under his supervision. In this single clause of the statute, therefore, we do not find a duty detailed to the attorney general to personally actually assist a county attorney in the performance of the latter's duties. Proceeding, evidently, with this view of what are the attorney general's supervisory powers over county...
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