128 P. 853 | Or. | 1912
Opinion by
We will first consider the question raised by the motion to strike out parts of the complaint. The important question raised by this motion is whether the State is a proper party plaintiff. Defendant treats the action as one in ejectment, and insists that the State cannot maintain that action under Section 325, L. O. L. If the State is a proper party plaintiff to recover the possession of the rooms, we see no reason why this action might not be sustained as a common-law proceeding by information to enforce the state’s right to the property. State v. Pinckney, 22 S. C. 484, 503; 36 Cyc. 907; 3 Blackstone, Commentaries, 261; State v. Paxon, 119 Ga. 730 (46 S. E. 872).
“There shall be elected by districts comprised of one or more counties, a sufficient number of prosecuting attorneys, who shall be the law officers of the State, and of the counties within their respective districts, and shall perform such duties pertaining to the administration of law and general police as the legislative assembly may direct.”
Article VII, as amended in 1910, omits any reference to this subject, by Section 2 thereof leaving the judicial system as now constituted until otherwise provided by law; therefore, the provisions of Section 17, Article VII, of the constitution, remain in force. In 1891 the legislature created the office of Attorney General of the State of Oregon. Among other duties imposed upon him is:
“And he shall, when requested by any State board or board of trustees, or by the Governor or the Secretary of State or the State Treasurer, appear, prosecute, or defend any action, suit, matter, cause, or proceeding in any court in which the State is a party or interested.” Section 2670, L. O. L.
Thus the legislature makes him the legal officer of the State in such cases as the one under consideration, and
“The district attorney is the law officer of the State, within the limits of his district, with the powers, in the absence of statutory regulation, of the Attorney General at common law.”
In State v. Guglielmo, 46 Or. 250, at page 257 (79 Pac. 577: 80 Pac. 103: 69 L. R. A. 466: 7 Ann. Cas. 976), this language is quoted with approval, and at 46 Or. 263 (80 Pac. 103: 69 L. R. A. 466: 7 Ann. Cas. 976), it is said that the authority of the district attorney to file informations is derived from the statute. Justice Burnett, in State ex rel. v. Millis, 61 Or. 245, at page 249 (119 Pac. 763), in effect, concedes the power of the legislature to confer authority upon the Attorney General to prosecute actions in which the State is interested, except those the commencement of which had been already vested in the district attorney. The authority here sought to be exercised by the Attorney General relates to a civil right of the State, which no doubt prior to the creation of the office of Attorney General might have been exercised by the district attorney, but is included
From the foregoing we are impelled to the conclusion that the ruling of the circuit court in sustaining the motion to strike out portions of the complaint was error, and that therefore the order sustaining the demurrer and judgment rendered thereon were also error. The judgment is reversed, and the cause remanded for such further proceedings as to the circuit court may seem proper, not inconsistent with this opinion. Reversed.