delivered the opinion of the court:
Thе Attorney General of the State of Illinois, by leave of this court first had, filed his original petition for a writ of mandamus directed to the Hon. Daniel A. Covelli, sitting as judge of the criminal court of Cook County, to compel him, first, to vacate and expunge an order granting a petition to suppress evidence on motion of defendants in People v. Lavin et al., and second, to enter nunc pro tunc as of July 12, 1952, an order of nolle prosequi оn petitioner’s motion in that case.
In December of 1951 the grand jury of Cook County returned four indictments against Thomas F. Lavin, Jr., and two others, all dealing with various alleged violations of the Illinois Cigarette Tax Act. (Ill. Rev. Stat. 1951, chap. 120, par. 453.1 et seq.) All these indictments were in due course assigned by the chief justice of the criminal
These proceedings were instituted and prosecuted pursuant to section 16 of the Illinois Cigarette Tax Act, which directs that all legal proceedings thereunder shall be instituted and prosecuted by the Attorney General. Ill. Rev. Stat. 1951, chap. 120, par. 453.16.
After the one indictment was nollеd, the Attorney General suggested to the court that the remaining cases be transferred to the chief justice for reassignment. The court continued the case, stating that the chief justice, in assigning cases at the opening of the term, had advised all judges that he did not wish to continue the practice, then prevalent among trial judges,.that in the event the chief justice sent three indictments to the trial judge he would try one and send back the othеr two, but on the contrary that the chief justice directed the trial judges to try all indictments assigned, to which all the trial judges agreed.
One of the defendants, Thomas F. Lavin, Jr., thereafter filed his petition to suppress certain evidence as having been seized in an illegal search, such evidence having been offered by the People and received in evidence at the trial on the first indictment. The petition to suppress came
Under such circumstances, at the time the court indicated that the motion to suppress was sustained the special assistant Attorney General stated, “The Court has not heard the evidence, he has given me no opportunity to present it to the Court or the cases with respect to it * * * I can only state to this Court now that I respectfully request this Court to retransfer this case.”
Upon a denial of such request, the Attorney General orally moved to nolle prosse the pending cases, which motion was denied on July 10, 1952.
Two days later the Attorney General presented a written motion for a nolle prosequi. The written motion, after setting forth the entry of an order sustaining the petition to suppress before completion by the People of its evidence and without opportunity to present argument, proceeded to state that it was the opinion of the Attorney General that the People did not have sufficient evidence admissible under such ruling to result in a conviction, that it was the Attorney General’s considered view that it was not in the best interests of the administration of justice in the State of Illinois to proceed with the prosecution of the defendant in these cases at this time under these indictments, and that to proceed with the рrosecution under these indictments at this time under the order of court suppressing evidence would result in a miscarriage of justice.
The court intimated that it would grant the motion of the Attorney General to nolle if the Attorney General
The facts from which this petition for writ of mandamus originated present to the court two issues. The first is whether the Attorney General of the State has the constitutional power in the specific situation presented by the instant case to nolle prosse the proceeding in his absolute discretion free of encroachment by the judiciary. The second issue is whether the trial court acted so arbitrarily and capriciously in sustaining defendant’s petition to suppress evidence as to require this court to award the writ.
The legislature in this State has not by specific statutory authority endowed the Attorney General with power to nolle prosse criminal prosecutions. It thus becomes a question for decision whether, in the situation we find here, there is included among the inherent powers of the Attorney General the power to nolle prosse, the maintenance of the proceeding in his judgment being no longer in the public interest.
In People ex rel. Barrett v. Finnegan,
Fergus v. Russel, in its discussion of the attorney generalship, states, “The office of Attorney General is created by section 1 of article 5 of the constitution of 1870, * * *. It will be observed that the constitution confers no express powers upon the Attorney General and prescribes no express duties for him to perform. It simply provides that he shall perform such duties as may be prescribed by law. The office of Attorney General was one known to the common law, and under the common law the Attorney General had well known and well defined powers and it was incumbent upon him to pеrform well known and clearly prescribed duties. It is not necessary, and indeed it would be difficult to enumerate all the powers vested in the Attorney General at common law and all the duties which were imposed upon him to perform. It is sufficient for the purposes of the discussion of the point here involved to state that at common law the Attorney General was the law officer of the crown and its chief representative in the сourts. * * * The question presented for our determination is, whether by creating this office under its well known common law designation the constitution engrafted upon it all the powers and duties of the Attorney General as known at common law, and gave the General Assembly authority to confer and impose upon the Attorney General
The powers and duties of the Attorney General were reviewed in Hunt v. Chicago Horse and Dummy Railway Co.
From a review of the foregoing authorities it is fairly obvious that the courts of this Statе have considered the Attorney General’s powers and duties to include not only those conferred by statute, but also those powers and duties inherent in the office as it existed at the common law. It was stated by Justice Blackburn that the power of determining whether the prosecution of an indictment shall go on or not is intrusted to the Attorney General, who is the great law officer of the Crown; and, whether he is right or wrong the court cannot intеrfere. (Regina v. Allen, 1 Best & S. 850.) Thus in Regina v. Comptroller General,
A thorough and exhaustive annotation on the power of a public prosecutor' to dismiss a prosecution appearing in 35 L.R.A., beginning at page 701, seems to recognize a very real and ancient limitation on the power. After recognizing that in England the Attorney General had power to make the entry as the representative of the Crown and thereby at once to stay the proceeding in any indictment or criminal proceeding, citing as the basis for such conclusion Regina v. Allen, 1 Best & S. 850, the follоwing statement is made: “By the English practice the entry of a nolle prosequi was the prerogative of the Attorney General to which there was no limitation (except in case of injury from unlimited repetition. King v. Webb, 3 Burr. 1468, 1 W. Bl. 160.)” In King v. Webb, Lord Mansfield and the entire court, perceiving that an injury might arise from an unlimited number of dissolutions, said, “There can be no such rule that, when a man is indicted for an infamous offense, the prosecutor is entitled to come into court and quash his indictment as often as he pleases, it may be ad infinitum. The court will see that no mischief or oppression ensued, before they will grant leave for that purpose.” The refinement here urged does not come into
Thus under the common-law criminal procedure in England, a nolle prosequi could be entered only by the authority of the Attorney General, who had exclusive discretion in the matter (9 Laws of England (Halsbury), p. 350,) except that such power could not be exercised repeatedly without good and sufficient cause. In the United States, the powers and duties of the Attorney General with respect to the conduct of criminal prosecutions generally pass to the prosecuting attorney. (
In People ex rel. Hoyne v. Newcomer,
It is thus apparent that on those occasiоns when the Illinois courts have had an opportunity to examine into the matter of the rights and prerogatives of the Attorney General of the State, they have quite generally determined that such officer, in addition to those powers and duties conferred by statute, enjoys all the inherent powers and duties of the Attorney General of England under the common law, and that under no circumstances could those powers be denied him.
The Attоrney General having been held the chief law officer of the State, and the courts having found that in the creation of that office there were engrafted upon it all the powers and duties of the Attorney General as the same were known at common law, any limitations urged upon his common-law power to nolle prosequi must necessarily be of long common-law recognition. In a representative government, such as wе enjoy in Illinois, all powers of government belong ultimately to the people in their sovereign corporate capacity. Under such a government the people may distribute, for the purposes of government, the various powers thereof. These they have divided into three departments: Legislative, executive, and judicial. By article III of our constitution it is provided that “no person or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others.” By this provision the people intended to provide, and did provide, a complete separation of the branches, and completely deprived a member of one branch of authority to exercise any power properly belonging to the other two branches. The Attorney General’s office is a part of the executive department, and the constitutional powers
Here, at the time of entry of the nolle prosequi by the Attorney General, no jury had been impaneled and the defendant had not been put in jeopardy under these indictments. In presenting this motion for nolle prosequi the Attorney General gave as his reasons therefor that, under the rulings on evidence theretofore rendered by the trial court and with which he apparently disagreed, the People did not have sufficient admissible evidence to result in a conviction, and to proceed at that timе under the order of the court suppressing evidence would not be in the best interests of the administration of justice in Illinois and would result in a miscarriage of justice. It is also apparent from the record here that the nolle prosequi sought to be entered here is not repetitious, this being the only time that a motion for that purpose has been filed. Therefore, the limitation set forth in King v. Webb to the effect that a court can interfere to prevent an injury from an unlimited number of dissolutions has no application here. The record also discloses that the nolle prosequi was sought to be entered before the impaneling of the jury. Therefore, if the general rule prevails as set forth in Corpus Juris Secundum, the Attorney General would have the right to enter the nolle prosequi in the instant case. Consequently, whether the rule recognizing absolute discretion in the Attorney General in the matter of nolle prosequi, or the rule engrafting limitation upon his power, is applied it is evident that the trial court erred in denying the motion for nolle prosequi.
Our disposition of the issue made with respect to the order of July 12, 1952, renders unnecessary a consideration of the issue concerning the order granting the motion to suppress evidence.
It necessarily follows from our conclusion that the Attorney General’s motion for a nolle prosequi should have been granted and from our direction to enter nunc pro tunc as of July 12, 1952, an order of nolle prosequi on the nolle prosequi filed by the Attorney General, that respondent was without authority after July 12, 1952, and, in particular, on March 31, 1953, to enter the order discharging defendants. Since respondent lacked jurisdiction to enter thé order of March 31, 1953, the issues made by the pleadings in this court were not rendered moot and abstract by the entry of the order of March 31, 1953. Accordingly, respondent’s motion to dismiss the petition for mandamus is denied. Disposition of petitioner’s motion to amend the prayer of the petition for mandamus to seek vacation and expunction of the order of March 31, 1953, becomes unnecessary.
Writ awarded.