Withee v. Lane & Libby Fisheries Co.

• Decision Date: 30 March 1921
• Citation: 113 A. 22
• Parties: WITHEE, Co. Atty., v. LANE & LIBBY FISHERIES CO.
• Court: Maine Supreme Court

113 A. 22

WITHEE, Co. Atty.,

v. LANE & LIBBY FISHERIES CO.

Supreme Judicial Court of Maine.

March 30, 1921.

Exceptions from Supreme Judicial Court, York County, in Equity.

Bill by Henry L. Withee, County Attorney for the County of Knox, in behalf of the State of Maine, against the Lane & Libby Fisheries Company. Demurrer to the bill was overruled and injunction granted, whereupon defendant excepted. Exception sustained, and bill dismissed.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

H. L. Withee, Co. Atty., of Rockland, for plaintiff.

A. S. Littlefield, of Rockland, for defendant.

SPEAR, J. The bill of complaint in this case is as follows:

"To the Supreme Judicial Court, in Equity.

"Henry L. Withee, county attorney of Knox county, in behalf of the state of Maine, complains against Lane & Libby Fisheries Company, a corporation existing by law and having its place of business at Vinalhaven, Knox county, Me., and says," etc.

In these lines, naming the party in whose name and in whose behalf the bill is brought, is raised the issue involved in the case namely: Is a county attorney authorized by the common law or by statute to bring a bill for the abatement of a nuisance in behalf of the state in his own name?

To the bill the defendant demurred, and after hearing upon the merits, the bill having been sustained, an injunction granted, and the demurrer overruled, the defendant filed exceptions to the decision of the court in overruling the demurrer and asserts the following objection to the maintenance of the bill: (1) That there is no proper plaintiff; (2) that the bill does not set out a cause for the intervention of the court in equity.

We need, however, to consider the first objection only. It is claimed that Henry I* Withee is not a proper plaintiff to the bill. While conceding, for the purpose of argument, that the bill might be sustained with the state of Maine as plaintiff, or by the Attorney General in his official capacity, as representing the public interests, as plaintiff, the defendant nevertheless claims that it does not follow therefrom that such a bill can be maintained in the public interest with the county attorney as plaintiff therein.

We think this contention must prevail. The United States and the states composing it have inherited from the English common law the officer known as the Attorney General. In that common law the duties of the Attorney General, as chief officer of the realm, were numerous and varied. With reference to the duties of the Attorney General in the different states, it is said in 2 R. C. L. 916, par. 5:

"Although in a few jurisdictions the Attorney General has only such powers as are expressly conferred upon him by law, it is generally held that he is clothed and charged with all the common-law powers and duties pertaining to his office as well, except in so far as they have been limited by statute. The latter view is favored by the great weight of authority, for the duties of the office are so numerous and varied that it has not been the policy of the state Legislatures to attempt specifically to enumerate them; and it cannot be presumed, therefore, in the absence of an express inhibition, that the Attorney General has not such authority as pertained to his office at common law. Accordingly, as the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require, and may institute, conduct, and maintain all such suits and proceedings as be deems necessary for the enforcement of the laws of the states, the preservation of order, and the protection of public rights."

In our state the Attorney General is a constitutional officer (see Const. art. 9, § 11), and exercises common-law powers.

In Pomeroy's Equity Jurisprudence, § 1349, it is said:

"A court of equity has jurisdiction to restrain existing or threatened public nuisances by injunction, at the suit of the Attorney General in England, and at the suit of the state, or the people, or municipality, or some proper officer representing the commonwealth, in this country."

The question here is, Who is the proper officer representing the commonwealth when the proceeding is not brought either in the name of the Attorney General or the commonwealth?

By analogy, the argument might seem plausible that the county attorney, as he is called in this state, as well as the Attorney General, might represent the state. In discussing the distinction between the prerogatives of the Attorney General and the county attorney with reference to representing the state, 2 R. C. L. 914, par. 2, under the caption ...