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Common Law Powers If you have issues viewing or accessing this file contact us at NCJRS.gov. • ;:, . '. .',,~. ' b. '. ()" '. }" " Common Law Powers This microfiche was produced from documents received for inc~usion In the HeJIRS data base.' Since HCJRS cannot exercise of State Attornys control over the physical condition of the documents submitted, neral th~ individual frame qualit~ will vary. Th! resolution chart on this frame may be used to evaluate the :document quality. January, 1975 . ..~ Ij II . II 2 5 i, 1.0 1111/ . i.! 'I The National Association of Attorneys General 2.2 , ! ,! Committee on the Office of Attorney General I 1.1 :I , j A. F. Summer, Chairman I ·1 I .1l 1111,1.25 111111.4 1111I i.6 1 I I 1 MICROCOPY RESOLUTION TEST CHART . It NATIONAL BUREAU Of STANDARDS-1963-A I : I ; ! U Microfilmin& procedlfJres used to create this fiche comply with the standards set forth in 41CFR 101·11.504/. ~. ft. " • .1 Points of view or opinions $tahd in this documant are those of the authorls) and do not represent the official pOSition 9J policies o~ tha U.S. Department of Justice. U.S. DEPARTMENT OF JUSTICE lAW ENFORCEMENT ASSISTANCE ADMINISTRATION NA TlOHAl CRIMINAL JUSTICE REFERENCE SERVICE WASHINGTON, D.C. 20531 ··----w_~w ....... o ate f i I m'e II; 8/5/7 5 ~"""""'-~"'-~-' ~ .... ---.--~ --------------------- ----.--~-------------------------------------------- THE NATIONAL ASSOCIATION OF ATTORNEYS GENERAL National Association of Attorneys General COMMITTEE D.N THE OFFICE OF ATTORNEY GENERAL Committee on the Office of Attorney General I Chairman j Attorney General A. F. Summer, Mississippi President-Elect, National Association of Attorneys General ,\! Vice-Chairman Attorney General Rufus L. Edmisten, North Carolina Member-at-Large Other Members COMMON LAW POWERS _ \\\'\ .. ___.;..,_", .. .,- ... tL~ I! Attorney General Chauncey H. Browning, West Virginia ..,. OF STATE ATTO&~EYS GENERAL I Member-at-Large Attorney General Larry D. Derryberry, Oklahoma .' Chairman, Committee on Criminal Law and Law Enforcement Attorney General Slade Gorton, Washington I Chairman, COl.Jmittee on Environmental Control Attorney General John L. Hill, Texas I Chairman, Committee on Consumer Protection I Attorney General Robert List, Nevada This study if financed by a grant from the Law Enforcement Chairman, Committee on Welfare Assistance Administration. The fact that LEAA is furnishing financial support for the project does not necessarily indicate ! Attorney General Daniel R. McLeod, South Carolina its concurrence in the statements or conclusions herein. 1 Chairman, Committee on Commerce and Transportation I A~torney General Andrew P. Miller, Virginia .1 Chairman, Committee on. Antitrust f,' Attorney General Francisco Dejesus-Schuck, Puerto Rico I Member-at-Large Attorney General Richard C. Turner, Iowa I Member-at-Large 1 I I I' t ~ ./ ~, , January, 1975 ~~------ -~- -- -------~~~~~~~-~~~~~~~~~~~~~~~-------------;;;rl ,; Ii nI! i i i I 1 i i 1 Ii I', I I! TABLE OF CONTENTS f I 1 i OFFICERS AND EXECUTIVE COMMITTEE Ii 1\ 1 I 1. INTRODUCTION. 1 OF THE II ~ ! 2. THE NATURE OF THE COMMON LAW. 1 i 3 NATIONAL ASSOCIATION OF ATTORNEYS GENERAL I i 1 'I j i Sources of the Common Law • . • 3 I I f I Constitutional or Statutory Recognition of Common Law . 4 President President-Elect .1 ! Ii Applicable Date of Common Law • • . • • 5 1 I Current Application in British Law. • . \ i . 5 Honorable Warren B. Rudman Honorable A. F. Summer ! j Attorney General of New Hampshire Attorney General of Mississippi Ii lot 3. DEVELOPMENT OF THE OFFICE OF ATTORNEY GENERAL 7 i! [ I Development in England .. 7 Other Executive Committee Members II t i , I Colonial Period . • . .: . 10 f I Continuity of Office. 12 l' Honor'able Arthur K. Bolton Honorable Louis J. Lefkowitz 1.1 Attc ,ney General of Georgia Attorney General of New York l i 13 ~ 1 4. THE ATTORNEY GENERAL'S COMMON LAW POWERS. j HonOl:able Chauncey H. Browning, Jr. Honorable Robert List I ~ Judicial Definition of Power. • . .. •.•.• 13 \ t Attorney General of West Virginia Attorney General of Nevada I! Representation of the People. .. ...•.•.. 15 t I Effect of Statutory Enumeration of Powers . 16 Honorable Francis B. Burch Honorable DCi.... i.'.;: R. McLeod I,t! '. Enforcement of Antitrust Laws • • • • . • • • • • • • '.' 17 Attorney General of Maryland il Attorney General of South Carolina Ii S~atus of the Attorney General's Powers. ..... ... 17 ! i Tabular Summaries • . • 18 Honorable Kimberly B. Cheney Honorable William J. Scott Status Subject to Change. • 18 Attorney General of Vermont Attorney General of ILlinois Powers Not Determined • . 18 No Common Law Powers ...• 19 Honorable Slade Gorton Honorable Theodore L. Sendak Powers Cannot be Limited. 22 IIi' Attorney General of Washington Attorney General of Indiana II Has Powers Except as Modified by Statute. 23 1\ Honlorable William J. Guste~ Jr. Honorable Richard C. Turner q 5. SPECIFIC COMMON LAW POWERS. • • • • • ;j • • 26 Attorney General of Louisiana Attorney General of Iowa II 'I Institution of Civil Suits .• 26 nonorable Frank J. Kelly Challenging the Constitutionality of Legislative or Attorney General of Michigan 1'1 II Administrative Actions .• 29 \I Intervention in Rate Cases. • .••....... 30 Parens Patriae. • • • . 30 Ii Proceedings Against Public Officers • . • • . 32 Abatement of Nuisance . • . • . 34 I Abatement of Offenses Against Horality. • , •.• 36 IJ. Enforcement of Charitable Trusts. • .•• 37 Intervention in Will Contests . • . 39 rl Revocation of Corporate Charters .• 39 !I Representation of State Agencies. •.• 40 f 43 ; ! Relationship to Local Prosecutors . • . • . fl Intervention and Supersession . • • . • • • . 46 ! ~ I j I Appearance Before a Grand Jury. • . • . .•. 47 II I '\ ~ 1111 n!l ~ -1 1. INTRODUCTION II Attorneys General derive their powers from constitutirmal, statutory Subpoena and Investigative Powers . 48 I and common law. There is no clear division between the three sources of authority, for each supplements the others. Many sFatutes, for example, Control of Litigation • . , 49 r I 52 are merely declaratory of the common law. Common law powers are the most Conclusion )1 difficult to establish; even if their existence is recognized by statute, 53 their definition rests with the courts. No court has ever att8mpted a Footnotes . complete listing of the Attorney General's powers at common law. • • It , 57 Appendix • • • . • • • The office of Attorney General developed as an outgrowth of the Co­ lonial Attorney General. Legal historians agree that: TABLE I •.• little attempt was made to define or enumerate duties, for the American Attorney General became possessed of the • • • It • • • • " 20 Table 1. Common Law Powers ot the Attorney General common law powers of the English Attorney General, except I as changed by constitution or statute ••.. The English of­ L fice was assuming its modern form as the American colonies .1 were being settled. By the seventeenth century the powers exercised by the Attorney General at common law were quite I nume:r au s • 1 The prevailing position concerning state Attorney General's common law powers is substantially stated in an oft-quoted remark from Ruling Case Law I .. 916 concerning the common law powers of the Attorney General: Although in a few jurisdictions the attorney-general has , I 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 stat- ute. i, I I A similar statement appearing at 6 Corpus Juris 809-810 also has been quot­ ! ed in a substantial number of cases. The office of Attorney General has existed from an early period, both in England and this country, and is vested by I common law with a great variety of duties in the adminis­ tration of the government. The duties are so numerous and t various that it has not been the policy of the legislature of the states of this country to attempt specifically to enumerate them; and where the question has come up for con­ f sideration, it is generally held that the office is clothed, in addition to the duties expressly defined by statute, with all the powers pertaining thereto under the common law. This re~ort examines particular powers that courts have attributed to I the Attorney General under common law. It also describes the status of the Attorney General's common law powers in the fifty-four jurisdictions. The common law is different in each state, as it depends on definition by that state's courts; however, such definitions usually cite case la~ of the state I or other jurisdictions so are interrelated. A list of cases, by jurisdic­ ·I tion, gives citations; it appears at the end of this report as an Appendix. i, -1- l- i ~ This report is an upd~ted revision of Section 1.3 of the Committee on 2. 'tHE NATURE OF THE COMMON LAH the Office of Attorney General's comprehensive study, The Office of Attorney General, which was published in 1971. A significant amount of new case law One problem in defining a state Attorney General's commo~'law powers concerning commotL law powers has developed since that report was prepared is the nature of the common law itself. As this chapter notes, it is and is incorporated into this revision. largely unwritten and is not susceptible to clear definition. Common law powers are a matter of much more than historical interest. Sources of the Common Law Courts have upheld the Attorney General's common law powers, without spe­ cific statutory authority: to intervene in a rate case as representative The term "common lawll is variously spoken of by American courts as in­ of the public; to proceed to enjoin a nuisance in the form of stream pollu­ cluding "the common jurisprudence of the people of the United States ..• tion; to appear before a grand jury; to nolle prosequi a criminal case; and [which was] brought with them as colonists from England, and established otherwise to act effectively as the state's chief law officer.
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