State v. Davidson

• Decision Date: 18 February 1929
• Docket Number: No. 3380.,3380.
• Citation: 275 P. 373,33 N.M. 664
• Parties: STATEv.DAVIDSON et al.
• Court: New Mexico Supreme Court

33 N.M. 664

275 P. 373

STATE

v.DAVIDSON et al.

No. 3380.

Supreme Court of New Mexico.

Feb. 18, 1929.

Syllabus by the Court.

The office of Attorney General was created in New Mexico by statute, Kearny Code (Comp. Laws 1884, p. 90), and at a time before the common law was adopted as the rule of practice and decision in this jurisdiction. The office, therefore, has attached to it no common-law powers; its jurisdiction being governed by statute.

The state highway commission has power to employ special counsel to advise and assist it in the performance of its duties.

Section 1860, Code 1915, interpreted, and held, that the pronoun “they” is to be substituted for the pronoun “he,” and that, as so interpreted, it requires the Attorney General's office or a district attorney's office to represent the state or a county in the cases mentioned in the statute.

Said section only requires such representation in suits in court by the state or a county, and not otherwise.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Suit by the State against W. C. Davidson and others. Judgment in favor of defendants dissolving a temporary injunction theretofore issued, and the State appeals. Affirmed, and cause remanded.

State highway commission has power to employ special counsel. Code 1915, §§ 1860, 2632; Laws 1917, c. 38, § 5.

M. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State.

C. H. Gilbert and M. W. Hamilton, both of Santa Fé, for appellees.

PARKER, J.

This is a suit by the state seeking to enjoin the members of the state highway commission, the state highway engineer, and the state auditor from approving a voucher in the sum of $215 issued in favor of the appellee Gilbert in payment for legal services rendered by him for the state highway commission during the month of November, 1927. An injunction was also sought against the state treasurer to restrain him from paying, and against the appellee Gilbert to restrain him from accepting payment of any warrant which might be issued on such voucher. A temporary injunction was issued by the court as prayed for in the complaint. The appellees answered in due course, and after trial judgment was rendered in their favor dissolving the injunction. From that judgment the present appeal was taken.

Although exceptions were saved to various findings of fact made by the trial court, the correctness of those findings is not challenged here, nor is the evidence presented here for review by bill of exceptions or other appropriate mode. The findings of the trial court are therefore conclusive upon this appeal. Upon those findings and the pleadings, the following facts are established:

The state highway commission is charged with the duty of, and actually engaged in the constructing, improving, and maintaining of, the system of state highways. In that connection it is exclusively engaged in conducting and carrying out matters of a general business nature rather than of a governmental nature. In connection with its work, it is required to handle extremely large sums of money, for the legal and proper expenditure of which the state highway engineer is responsible personally and upon his official bond. The work of the highway commission concededly could not be carried on with efficiency and sarety either to the state, the public, or the officials of the highway department, without the constant, prompt, and efficient advice and guidance of a competent attorney.

The needs of the highway department in regard to legal services are much broader in their scope than the statutory duties of either the Attorney General or the district attorneys of the state. The other manifold duties imposed by law upon those officials are such that it would be impossible for them to care for the legal needs of the highway department, and it thus became impossible for that department to properly discharge its duties without the employment of special counsel. In this connection, the trial court found that the employment of such special counsel has been greatly to the advantage of the state, and that “it would entail great loss upon the State of New Mexico, and render impossible the safe, proper or efficient operation of said department to prohibit such employment by it.”

Under these circumstances, the appellee Gilbert was employed as special counsel for the highway department. It is conceded that he is an attorney in good standing before the courts of this state, and that the services performed by him for that department were actually worth the amount of his charges.

In employing special counsel, the highway department was merely continuing an established practice which had been carried on without question for many years. In this connection, the following is admitted by the pleadings:

“For many years prior to the employment of the defendant, Gilbert, as alleged in the complaint herein, and practically since the creation of said state highway commission, the said commission and the state highway engineer of the State of New Mexico have, from time to time, when necessity therefor has arisen, employed special legal counsel to advise and represent them in the conduct of their official duties; and that said special counsel have uniformly been compensated for such services from the public monies of the State of New Mexico under the control of said state highway commission, and that such custom has been well known to and acquiesced in by all interested persons and by the public at large during all of said time.”

[1] It is first contended by the state that the office of Attorney General, having been created by our Constitution without the enumeration of the powers and duties appertaining thereto, became thereby vested with all powers and duties inhering to that office at common law. The appellant further contends that the employment of special counsel by any agency of the state would result in a partial taking from him of those common-law powers and duties, and could not therefore be constitutionally authorized by statute. In support of these contentions, the appellant relies largely upon the case of Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120, which holds that the creation of the office of Attorney General by the Constitution of Illinois invested that office with common-law powers and duties which could not later be transferred by statute to any other department of the state.

The doctrine of common-law power in the Attorney General appears to have originated in New York, and to have grown out of the peculiar conditions surrounding the formation of the governments of the original thirteen colonies. The leading case upon that doctrine is probably that of People v. Miner, 2 Lans. (N. Y.) 396. The New York court there said:

“The office of Attorney General had existed several centuries in England before the formation of the Colonial Government in this country, and his duties were well understood, and clearly defined.

Most, if not all, of the colonies appointed Attorneys Generals, and they were understood to be clothed, with nearly all the powers, of the Attorneys Generals of England, and as these powers have never been defined we must go back to the common law in order to ascertain them. * * * As the powers of the Attorney General, were not conferred by statute, a grant by statute, of the same or other powers, would not operate to deprive him of those belonging to the office at common law, unless the statute, either expressly, or by reasonable intendment, forbade the exercise of powers not thus expressly conferred. He must be held, therefore, to have the powers belonging to the office at common law, and such additional powers as the legislature has seen fit to confer upon him.”

It is apparent from this case and the others cited that this doctrine of implied common-law powers in the Attorney General is based upon the existence of the specific fact that that office in a particular jurisdiction existed prior to any statutory definition of its powers, and, while so existing, such officer was recognized as having all powers appertaining to that office at common law. As a deduction from this premise, the New York court holds that a later statutory grant of powers to the Attorney General will not be construed as showing a legislative intent to deprive that office of prior existing common-law powers not enumerated in such statute. In the case of Fergus v. Russel, supra, the Illinois court merely carries this doctrine one step further in holding that the creation of the office of Attorney General by the Constitution, without any attempt therein to define its powers, constitutes by implication a constitutional confirmation of the common-law powers so inhering in such office, notwithstanding the fact that certain of its powers had been previously enumerated by statute.

We are not concerned here with the correctness of this doctrine, for it is clearly inapplicable in this jurisdiction. It is a doctrine of presumptions, and constitutes a departure from the general rule of expressio unius exclusio alterius. It is based entirely upon the initial premise that the Attorney General was recognized as being vested with common-law powers before any attempt was made to enumerate or define his powers by statute. In New Mexico, the converse of this condition exists. The powers and duties of the Attorney General were enumerated by the very statute which created that office. Kearny Code, C. L. 1884, p. 90. This was long prior to the adoption of the common law in this jurisdiction. The office itself was abolished in 1889, and the office of Solicitor General created in its stead. Chapter 56, Stats, 1889. By chapter 118, Stats. 1905, the title of the office of “Solicitor General” was changed to that of “Attorney General,” but it was specifically provided by that statute that:

“This act shall not be construed to change or in any way interfere with the powers and duties of...