State ex rel. Hamilton v. Scoville, 72 So. 546

72 So. 546 | Ala. | 1916

SOMERVILLE, J.

(1) We think there .can be no serious question as to the right of the Attorney General, as chief legal representative of the state, to appear in this proceeding and present such arguments and make such motions as the interests of the state may, in his judgment, require. The proceeding is in the name of the state, and its purpose is at least quasi public, since it involves the administration of criminal statutes, and the promotion of an established public policy. — Parker, Clerk, v. State, ex rel. Powell, 132 Ind. 419, 421, 31 N. E. 1114.

(2) But since the law itself has armed any citizen with the authority to initiate such a proceeding in the name of the state, we thing the necessary implication is that such citizen, if a bona fide relator, is also clothed with full authority to conduct and control the litigation by himself, or his legal representatives, as he may deem best. — Acts 1915, § 20, p. 14.

(3) However, the question presented by the motion in this case does not depend for its consideration by this court upon the power and authority of the Attorney General in the premises, but may, from its peculiar nature, be entertained and considered regardless of the source of its suggestion, and even without suggestion from any one.

Unquestionably, the respondent, Scoville, has an issue with the state of Alabama, a real, bona fide issue, the judicial determination of which in some way may be well within his rights. Unquestionably, also, both he and his attorneys have used every honorable means in their power to secure such an adjudication by a genuinely adversary proceeding to be filed, conducted, and controlled by. the ablest and most responsible legal representatives of the state. There has been no concealment of their purpose, and no suppression of the facts. So far as the present case and its particular results are concerned, we might apprehend no public harm and no evil consequences from its prosecution to judgment in the manner and under the circumstances here exhibited.

But the principle and the policy with which we'are here confronted reach far beyond the interests and results of any single case. The proceeding here resorted to has been provided, as a part of our prohibition machinery, only for the bona fide purpose of abating liquor nuisances and thereby promoting the general policy and particular purposes of the prohibition laws. — Acts 1915, § 37, p. 35. We have given very deliberate consideration to the circumstances of this case, and we are persuaded that a sound public policy, and a due regard for the dignity of our courts and the respect that must be maintained for their jurisdiction and proceedings, demand our condemnation, of this proceeding and our inhibition of its further prosecution.

We have conceded the existence of a justiciable question between respondent and the state, the question being simply whether his sale of “Fehr’s Ambrosia” is a violation of the prohibition laws. But we cannot escape the conclusion that in this proceeding there is no real adversary complainant, one of the prime essentials' of bona fide litigation. ’ Hamilton has no purpose in view except to aid his employer in the achievement of an ulterior and collateral design, conceived for his own benefit, and foreign to the purpose of the law invoked. He (the nominal relator) has been exonerated by respondent from any liability for the costs and expenses of the litigation; he does not desire to abate any nuisance; he did not employ and has never conferred with his alleged counsel; and, in short, his only connection with the case consists in his authorization of the use of his name as relator. And even in this, he is at most but an agent of and for respondent. Under such conditions as these the notion of the presence of an adverse party complainant must be regarded as merely fanciful, however honest and sincere the intentions of all concerned.

If, on the other hand, it could be successfully contended by respondent that the state, and not Hamilton, is the real complainant, and therefore there is a genuine adversary, we would, to be consistent, be compelled to hold that the further prosecution or dismissal of the cause lies within the power and discretion of the Attorney General, for such power could not be vested in a purely nominal relator. This, of course, is not our view of the case, and we state the alternative merely to show that in either view respondent cannot complain of our action.

Our conclusion is in accord with general judicial sentiment, as illustrated by numerous cases: Haley v. Eureka County Bank, 21 Nev. 127, 26 Pac. 64, 12 L. R. A. 815; Berks County v. Jones, 21 Pa. 416; Meeker v. Straat, 38 Mo. App. 243; Lee v. Lee, 55 Ala. 599, 602; South Springhill, etc., Co. v. Amador, etc., Mining Co., 145 U. S. 300, 12 Sup. Ct. 921, 36 L. Ed. 712.

We do not overlook the declaration of this Court in Benners v. State, 124 Ala. 97, 99, 26 South. 942, 943, that proceedings may be “instituted and conducted in an amicable way, with a view to speecling .the decision of a controversy involving real parties and interests.” That rule of policy is of general recognition, but the nature of the remedy here resorted to,' and the circumstances of . its invocation, forbid its application here. The motion will be granted, and the proceeding will be dismissed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.