State v. Ehrlick

• Decision Date: 11 May 1909
• Citation: 64 S.E. 935,65 W.Va. 700
• Parties: STATE v. EHRLICK et al.
• Court: West Virginia Supreme Court

64 S.E. 935

65 W.Va. 700

STATE v. EHRLICK et al.

Supreme Court of Appeals of West Virginia.

May 11, 1909

Submitted June 6, 1908.

Syllabus by the Court.

The prosecuting attorney of a county has authority, independent of the Attorney General, to institute and prosecute all criminal actions and proceedings, cognizable in the courts of his county, but has no such power or authority, respecting the prosecution of civil proceedings on the part of the state, beyond that expressly conferred by statute.

[Ed Note.-For other cases, see District and Prosecuting Attorneys, Cent. Dig. § 36; Dec. Dig. § 9. ^[*]]

As the chief law officer of the state, the Attorney General is clothed and charged with all the common-law powers and duties pertaining to his office, except in so far as they have been limited by statute.

[Ed Note.-For other cases, see Attorney General, Cent. Dig. § 5; Dec. Dig. § 6. ^[*]]

In the absence of any statutory provision to the contrary, the Attorney General has the management and control of civil litigation on behalf of the state.

[Ed Note.-For other cases, see Attorney General, Cent. Dig. §§ 8-10; Dec. Dig. § 7. ^[*]]

A bill in equity on behalf of the state, signed by counsel other than the Attorney General, is not demurrable for lack of disclosure on its face of authority or direction from him to file the same. Such an objection must be raised by a motion to dismiss or plea in abatement.

[Ed Note.-For other cases, see Equity, Cent. Dig. § 487; Dec. Dig. § 214. ^[*] ]

If a charge is of a criminal nature, or an offense against the public, and does not touch the enjoyment of property, or health, it is not within the jurisdiction of a court of equity.

[Ed. Note.-For other cases, see Equity, Cent. Dig. § 88; Dec. Dig. § 27. ^[*] ]

Equity has no jurisdiction to abate a public nuisance, either civil or criminal, at the instance of an individual or the state, not affecting or injuring the enjoyment of property or other personal rights.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 192; Dec. Dig. § 79. ^[*] ]

In so far as a public nuisance injures property or substantially interferes with the enjoyment thereof, directly or indirectly, or constitutes a purpresture, excluding citizens from the enjoyment of their civil rights in highways and other public grounds and places, or obstructing or interfering with the execution of the public business, it is abatable by injunction.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 192; Dec. Dig. § 80. ^[*] ]

If an injunction is necessary and proper for the protection of such rights, criminality of the injurious act does not bar the remedy in equity.

[Ed. Note.-For other cases, see Injunction, Cent. Dig. § 176; Dec. Dig. § 102. ^[*]]

Though the keeping of a gaming house is a criminal nuisance, punishable and abatable by indictment and conviction, there is no jurisdiction in equity to abate it, at the instance of either an individual or the state, unless it appears to be injurious to personal or property rights and the injury is not otherwise adequately remediable.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. § 192; Dec. Dig. § 80. ^[*] ]

Criminal remedies and procedure must be deemed adequate to the maintenance of the public right, in respect to moral and political principles, except in so far as the Legislature may have provided others, since that body, having plenary power over such matters, has seen fit to rely upon existing remedies, and courts of equity are powerless to ordain jurisdiction for themselves.

[Ed. Note.-For other cases, see Equity., Cent. Dig. § 80; Dec. Dig. § 27. ^[*] ]

Appeal from Circuit Court, Brooke County.

Bill by the State against George Ehrlick and others. Decree for plaintiff, and defendants appeal. Reversed, and bill dismissed.

J. J. Coniff, for appellants.

G. W. McClery, H. M. Russell, and Wm. G. Conley, for the State.

POFFENBARGER J.

On a bill, purporting to be that of the state of West Virginia, not signed, however, by the Attorney General, nor showing, in any way, that that officer authorized the filing of the same, but signed by the prosecuting attorney of a county, and an individual, describing himself as attorney for the state, the circuit court of Brooke county awarded a preliminary injunction, inhibiting the defendants, George Ehrlick and others, from carrying on, or conducting, what is known as a "turf exchange" in said county, extensively resorted to by people from other counties and states, for the purpose of betting on horse races, occurring in different parts of the country, and reported by telegraph. On the maturing and submission of the cause to the court, a decree was made, perpetuating the injunction, from which the defendants have appealed.

The first objection to the bill is its failure to disclose any direction by the Attorney General to institute the suit, his employment of counsel therefor, or his assent to the prosecution thereof; the record being entirely silent as to his attitude. Much authority is cited indicating power and authority in the Attorney General to institute suits on behalf of the state, in proper cases, and the propriety of his doing so, but none indicating that such suits cannot be instituted by the prosecuting attorney of the county, either by virtue of his office, considering it as being independent of, and not subordinate to, that of the Attorney General, or regarding it as a subordinate office in the executive department of justice of the state. The relation of the two offices to one another, their respective powers and duties, and the nature of the litigation all enter into the solution of this question. The office of Attorney General is of very ancient origin, and its duties and powers were recognized by the common law. That of prosecuting attorney is of modern creation, it seems, and its powers and duties are given, imposed, and prescribed by statutory law. 4 Cyc. 1028; Attorney General v. Forbes, 2 Myl. & C. 129. Prosecuting attorneys are generally described as deputies or assistants of the Attorney General (4 Am. & Eng. Ency. Law, 1026), but they are not dependent upon him for their powers in all cases nor in all respects subject to his control (23 Am. & Eng. Ency. Law, 275). In the exercise of his common-law powers, the Attorney General may, no doubt, advise the prosecuting attorney, as he does other officers, since he is regarded as the chief law officer of the state. As the Constitution and laws of the state make the two offices separate and distinct and vest in the prosecuting attorney certain powers and impose upon him certain duties, it seems clear that the Attorney General cannot strip him of the powers expressly given, nor increase the burdens laid upon him. The sense in which the local officer is subordinate to the general one seems to be that they are engaged in the same branch or department of the public business. This makes the relation theoretical, rather than practical. The business, once pertaining actually as well as theoretically to the office of Attorney General, has been divided between the two offices for purposes of convenience. We may say the office of prosecuting attorney has been carved out of that of Attorney General and made an independent office, having exclusive control, to some extent, of business of the state, arising within the county.

No doubt the Attorney General may assist the prosecuting attorney in the prosecution of such business, or perform it himself, in case of the nonaction of the prosecuting attorney, but he cannot displace that officer. He has neither power of removal nor control over him within his own province, so far as it is defined by statute, for, if the division of powers made by the statute were not respected nor observed nor susceptible of enforcement, the object and purpose of the division would be defeated. There would be no individual responsibility, if the powers of the Attorney General and prosecuting attorney were coextensive and concurrent. The one would be no more responsible than the other for the nonenforcement of the laws. Concurrence would produce interference, conflict, and friction in many instances, delaying the disposition of business to the detriment of the state. We think it plain therefore that, in a practical sense, the two offices are distinct and independent; but all the business does not seem to have been divided. Part of the civil business of the state in the county seems to have been reserved to the Attorney General. Section 6, c. 120, Code 1899 (Code 1906, § 3778), defines generally the duties of the prosecuting attorney, in the following terms: "It shall be the duty of every prosecuting attorney in this state, to attend to the criminal business of the state in the county in which he is elected and qualified, and also to civil cases in which the state is interested in such county, when required by and under the direction of the auditor; and when he has information of the violation of any penal law committed within his county, shall institute and prosecute all necessary and proper proceedings against the offender, and may in such case issue or cause to be issued a summons for any witness he may deem material. He shall also represent the county in all suits and proceedings for and on behalf of or against the county, or county court, overseers of the poor, or other public authorities of the county, and carefully look after and give attention to the general interests of the county." His authority extends to all the criminal business of the state in his own county. As to civil business in which the state is interested, he can act, on behalf of the state, only when required by the auditor and under the direction of the latter, or when the duty is enjoined by some st...