State ex rel. Woodahl v. District Court of First Judicial Dist. In and For Lewis and Clark County, 12240

• Decision Date: 31 March 1972
• Docket Number: No. 12240,12240
• Citation: 159 Mont. 112,495 P.2d 182
• Parties: The STATE of Montana on the relation of Robert L. WOODAHL, Attorney General of the State of Montana, Relator, v. The DISTRICT COURT OF the FIRST JUDICIAL DISTRICT of the State of Montana IN AND FOR the COUNTY OF LEWIS AND CLARK and Honorable Nat Allen, the Acting Judge thereof, Respondents.
• Court: Montana Supreme Court

Page 182

495 P.2d 182

159 Mont. 112

The STATE of Montana on the relation of Robert L. WOODAHL, Attorney General of the State of Montana, Relator, v. The DISTRICT COURT OF the FIRST JUDICIAL DISTRICT of the

State of Montana IN AND FOR the COUNTY OF LEWIS

AND CLARK and Honorable Nat Allen, the

Acting Judge thereof, Respondents.

No. 12240.

Supreme Court of Montana.

Submitted March 28, 1972.

Decided March 31, 1972.

Robert L. Woodahl, Atty. Gen., John P. Connor, Jr., Asst. Atty. Gen., Helena, Poore, McKenzie & Roth, Robert Poore, Sp. Deputy Atty. Gen. (argued), Donald Robinson, Butte, for relator.

Sandall, Moses & Cavan, Charles F. Moses (argued), Billings, for respondents.

H. James Oleson (argued), Kalispell, amicus curiae.

HASWELL, Justice.

The attorney general's application to this Court for supervisory control or other appropriate relief presents but a single legal issue: whether the attorney general, under the facts and circumstances of this case, has the power to initiate a criminal felony prosecution in the district court independent of the county attorney.

The district court held the attorney general has no such legal power. We agree.

The facts of this case are not complex. The attorney general applied to the district court of Lewis and Clark County, the Hon. Nat Allen, district judge presiding, for leave to file a direct information charging one George McGaffick with eight felony counts involving the presentation of fraudulent bills or claims to the state for allowance and payment. The application was signed by John P. Connor, Jr., assistant chief deputy attorney general of the state of Montana. The county attorney of Lewis and Clark County was not consulted and did not sign the application for leave to file the charges nor did he sign the information tendered to the court with the application.

On March 3, 1972, Judge Allen held a hearing on the application of the attorney general. Judge Allen heard detailed proof of probable cause for filing the information direct and made an express finding that probable cause existed and had been proven. However Judge Allen denied the application on the sole ground that the attorney general did not have authority to file the information himself independent of the county attorney's participation and signature.

Following this denial by the district court, the attorney general applied to this Court for supervisory control or other appropriate relief to review this determination by the district court. We issued an order by show cause and thereafter briefs were filed and oral argument heard on behalf of the attorney general, the district court, and the Montana County Attorneys' Association as amicus curiae. Additionally a motion to quash was filed by the Montana County Attorneys' Association.

At the outset we hold that the writ of supervisory control is available as a remedy to test the power of the attorney general in this regard. The attorney general has no remedy in the ordinary course of law by appeal from the district court's order. It will not do to say that he has an available remedy by directing the county attorney to sign the information and file it, for to do so would amount to an abdication of the legal power claimed by the attorney general and would furnish no answer to the legal issue he seeks to raise.

Proceeding to the merits, the basic position of the attorney general is that he has power to file these criminal charges and initiate this prosecution independent of the county attorney's power to do so; that the attorney general's power in this regard is derived from the common law which has not been abrogated by constitution or statute.

On the other hand, respondent's position is simply that the attorney general's common law power to initiate a criminal prosecution independently of the county attorney has been superseded by statute in Montana.

The common law power of the attorney general to file criminal charges and initiate criminal prosecutions is tacitly conceded. Nor can there be any real issue in this regard. Section 12-103, R.C.M.1947 provides:

'The common law of England, so far as it is not requgnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, or of the codes, is the rule of decision in all the courts of this state.'

The Montana Supreme Court, in State ex rel. Ford v. Young, 54 Mont. 401, 170 P. 947, had this to say concerning the nature and origin of the powers of the attorney general:

'The office of attorney general is of ancient origin. The powers and duties appertaining to it were recognized by the common law, and the common law has been a part of our system of jurisprudence from the organization of Montana territory to the present day. (Bannack Statutes, p. 356; Comp.Stats. p. 647; Rev.Codes, sec. 3552). In this state the office of attorney general is created by our state Constitution (sec. 1, Art. VIII), which also provides that the incumbent of the office 'shall perform such duties as are prescribed in this Constitution and by the laws of this state.' The Constitution enumerates certain duties, and section 193, Revised Codes, (now section 82-401-11, R.C.M.1947) certain others, and then concludes by imposing upon the attorney general 'other duties prescribed by law.' It is the general consensus of opinion that in practically every state of this Union whose basis of jurisprudence is the common law, the office of attorney general, as it existed in England, was adopted as a part of the governmental machinery, and that in the absence of express restrictions, the common-law duties attach themselves to the office so far as they are applicable and in harmony with our system of government.' (Emphasis supplied.)

To the same effect see State ex rel. Olsen v. Public Service Comm., 129 Mont. 106, 283 P.2d 594.

The underlying issue here is whether or not the attorney general's common law power in this respect has been abrogated by statute. At the outset in a criminal case we note a complete absence of any constitutional or statutory power vested in the attorney general to file an information or initiate a prosecution independent of the county attorney. On the other hand, there are numerous statutes requiring the county attorney to file criminal charges and institute criminal prosecutions. Section 16-3101, R.C.M.1947, lists the powers of the county attorney and this section reads in pertinent part as follows:

'16-3101. Duties of county attorney. The county attorney is the public prosecutor, and must:

'1. Attend the district court and conduct, on behalf of the state, all prosecutions for public offenses and represent the state in all matters and proceedings to which it is a party, or in which it may be beneficially interested, at all times and in all places within the limits of his county; * *...