22 Mont. 25 | Mont. | 1899
The Attorney General of the State is required by the Constitution (Art. VII, Sec. 1) to perform such duties as are prescribed in the Constitution and laws of the State. Inasmuch, however, as there appear to be by the Constitution no powers or duties specifically delegated to that officer whereby he is clothed with supervisory powers over other or inferior legal officers of the State, or any subordinate government therein, or directing him to assist such other and inferior officers in the performance of their duties, we must turn to the laws,'there to ascertain what, if any, such duties are prescribed, and what are the extent and limitations of his official authority.
Enumeration of his duties is made by Article VIII, Secs. 460 et seq., Political Code. Among other requirements therein mentioned, he is to exercise a supervisory power over county attorneys in all matters pertaining to the duties of their offices, and from time to time to require of them reports as to the condition of public business intrusted to their charge.
A duty to exercise supervisory power clearly implies the possession of supervisory power. There is, therefore, in the Attorney General a right to oversee for direction, to inspect with an authority all matters pertaining to the duties of the county attorneys of the State, and to direct with superintending oversight the official conduct and acts of such officials; and it is his prescribed duty to exercise and perform these acts, and'to do whatever may be necessary and proper to render his
The policy of the law is easily discerned. The Attorney General is the principal law officer of the State. His duties are general; his authority is co-extensive with public legal affairs of the whole community. His advice often affects the rights of all persons within the State, and, excepting judgments and orders of court, his opinions control public interests more largely than do the acts of any other official of the State. Responsibilities of so high a character are usually put upon a lawyer of ability, experience and character, and, presuming the Attorney General to be such, the statute has given him the significant, yet extensive, powers referred to. Again, exigent times occasionally arise in the affairs of a state, where local considerations render it impolitic to intrust a county attorney with the discharge of his duty unaided by learned counsel representing the supreme authority of the State. Circumstances sometimes demand that there shall not only be a supervisory action, but an assistance to an inferior official as well, to the end that justice may be more certainly attained. When considerations of this nature move the Attorney General, or, even when they do not move him, yet the Governor is moved by them, and directs him to exert his authority, he shall assist the county attorney, and must do so in the discharge of the duties which the county attorney is required by law to perform.
In the particular matter under consideration, the requirements of the public service have been expressed by the lawmakers themselves, in. the form of a resolution requesting and directing the Attorney General to assist the County Attorney in the investigation of bribery charges made by certain mem
From these observations concerning the power to supervise and assist where properly set in motion, we pass to the inquiry, what are the duties to be discharged by a county attorney ? He is a public prosecutor ; required to attend the District Court, institute proceedings before magistrates, attend before and give advice to the grand jury, draw all indictments and informations, advise county commissioners, and to perform various other duties prescribed by Sections 4450 et seq. of the Political Code. No duty, though, is laid down for him to do, in the performance of.which he can escape the supervisory powers of the Attorney General; nor is there any official act to be discharged by him in the performance of which he may not, where public interests require it, be assisted by that official expressly authorized and empowered to assist him. The statutes defining the duties of the county attorney do not curtail or restrict in any manner whatsoever the duties or powers of the Attorney General, or vest any authority in the county attorney exclusively where public service requires that the Attorney General assist him. The Attorney General may, in his assistance, do every act that the county attorney can perform, and, in his supervision, may even undo any that he has already done. The statutes prescribing the duties of each are in perfect harmony, and a complete system is established by which the State is secured local counsel in all cases ordinarily arising, with general counsel to supervise, and to be present and assist in matters of extraordinary moment.
“The grand jury may, at all reasonable times, ask the advice of the court, or the judge thereof, or of the county attorney; but unless such advice is asked, the judge of the court must not be present during the sessions of the grand jury. The county attorney of the county may .at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by them, and may interrogate witnesses before them whenever they or he thinks it necessary ; but no other person is permitted to be present during the sessions of the grand jury except the members and witnesses actually under examination, and no person must be permitted to be present during the expression of their opinions or giving their votes upon any matter before them. ’ ’
The objects of this statute are to preserve to the body alone clothed with authority of indicting for public offenses — the grand jury — a right to have witnesses interrogated by official counsel at its sessions, and to keep the proceedings of that body as secret as possible by excluding therefrom those not vested with official authority; but this provision is part of Chapter IY. of the Penal Code, pertaining to the powers and duties of grand juries, and not to those of the gounty attorney or the Attorney General, the scope of whose authority and duties is elsewhere specially provided for by the law, herein-before discussed in this opinion. There is no inconsistency between Section 1788 and the statutes controlling the duties of the Attorney General and of the county attorney; for, as ,we have seen, it being the right of the Attorney General to assist by doing whatever the county attorney may do, no statute regulating the procedure of grand juries, and designating those who may be present at their sessions, and who
Cases where strangers or unofficial counsel have been permitted to remain in a grand jury, room during the sessions of that body are inapplicable, for no such case appears by petitioner’s affidavit. Our decision rests upon the delegation of authority to the Attorney General to assist the county attorney, the public service requiring it, and upon the broad ground that, under the law, assistance means personal participation and help to the county attorney in the lawful discharge of his official duties, no matter what the tribunal or body may be wherein the duty lies, and no matter what the nature of the official duty may be. If the county attorney can act, the Attorney General can assist and do that same act. The Attorney General is, therefore, entitled to have the writ prayed for issue.
The court expresses its obligations to all counsel appearing, for the fair and impartial-manner in-which the several points involved have been presented.
Let. the writ issue.
