The appellee, relying on a dictum in Howard v. State ex rel. Andrews, Solicitor, 238 Ala. 185, 190 So. 278 [opinion by the writer] now insists that the bill is wholly without equity, because it was not filed by or joined in by the Attorney General.
This question was not raised on the submission of this appeal made on motion of the Attorney General and supported by him by brief and argument. True the defendants demurred to the bill on the ground that the solicitor was without authority to file same and the demurrer was overruled, but there is no appeal from that decree, and no cross-assignment of error by the demurrant, on this appeal.
The equity of the bill was sustained in Howard v. State ex rel. Andrews, supra, but in the dictum it was stated: "Such bill [to enjoin a common law public nuisance] can only be entertained when it is filed by the State on the relation ofthe Attorney General, or by a private individual in his own name who suffers special injury or damage different in kind from that suffered by the public generally." 238 Ala. 186,190 So. 279. The point at issue is the necessity of the proceedingbeing instituted by the Attorney General as relator andrepresentative of the State. [Italics supplied.] *Page 147
In proceedings before this court "for remedial writs to correct errors intervening, or supposed to have intervened, in the course of the proceedings of inferior courts in theexercise of criminal jurisdiction," it has been held: "Such application must be made in the name of the state, and must be made by and through the attorney general." Ex parte State of Alabama (In re Stephenson), 113 Ala. 85, 21 So. 210. [Italics supplied.]
In that case it was said:
"The petition addressed to the court in this case has a caption preceding the address: 'Ex parte the State of Alabama, In Re Noah Stephenson.' In the body of the petition the state is not nominated as a party, and it is signed by the solicitor for the county of Montgomery. The motion entered on the docket, reads: 'Comes Tennent Lomax, solicitor,' etc., 'who prosecutes for the state of Alabama,' — and is signed by the solicitor. A statutory duty of the attorney general is to 'attend on the part of the state, to all criminal cases pending in the supreme court, and to all civil cases in which the state is a party in the same court.' Code [of 1886], § 127. It is manifest that this tribunal can recognize no other representative of the state than the attorney general. Whether the state has an interest in the vacation of the order made in a criminal case by a court of competent jurisdiction, or whether there shall be a prohibition of the exercise of jurisdiction, or any other remedial writ prosecuted by the state, — at all times a matter of more or less gravity, — the law commits to the judgment and discretion of the attorney general, and when he proceeds he must proceed in the name of the state.
"Whether there be any merit in the present application is not a question for consideration. It will be time enough to consider and decide it when presented properly by proper authority. The petition and motion are overruled."
In another case of like character as the case just cited, an application by the State, on the relation of the circuit and county solicitor, to the circuit court, as the opinion states, "for a mandamus to Hon. Robt. I. Burke, judge of the county court of Cullman county, to compel the said judge of the county court to reinstate upon the docket of the county court * * * divers criminal causes for violation of the prohibition laws of this state, particularly mentioned in the petition for mandamus, which are alleged to have been unlawfully nol. pros'd by the said county court, without the consent or request of the circuit or the county solicitor, and over their protest, and to compel the said judge to proceed with the trial of said causes." [160 Ala. 163, 48 So. 1036]. In responding to the insistence that in such proceedings, the circuit and county solicitor were without authority to proceed in the name of the State, the Justice speaking, observed:
"It is not only unnecessary, but improper, for us on this appeal to pass upon the merits of the petition or the assignments of error. We know of no law authorizing the solicitor, or any other person or officer, other than the Attorney General of the state, to institute a proceeding likethis, in the name or on the relation of the state, or in his own name." [Italics supplied.]
The bill filed in this case is not an application for a remedial writ, such as mandamus, or prohibition, sometimes referred to as prerogative writs, to review, reverse or restrain the action of an inferior court of criminal jurisdiction, as Ex parte State of Alabama (In re Stephenson), supra, and State ex rel. Almon et al. v. Burke, Judge, 160 Ala. 163,48 So. 1035, hence the following observation in State ex rel. Almon, et al. v. Burke, Judge, supra, is here applicable to said decisions, we quote: "While the case of Benners v. State, 124 Ala. 97, 26 So. 942, does decide that solicitors, being the prosecuting officers of the state, are proper realtors in the bringing of an application for mandamus, that opinion, like all others, must, of course, be limited to the case under consideration." 160 Ala. 167, 48 So. 1036.
As observed in the opinion of May 14, 1942: "This is a bill filed by the State of Alabama on the relation of the Solicitor of the Sixteenth Judicial Circuit, in pursuance of the recommendation of the grand jury of St. Clair County and an order of one of the circuit judges of said Circuit." Some of the facts confronting these officers of the State are, we may assume, stated in the bill, and others of which the courts take judicial knowledge are stated in brief filed "amicus curiae."
"A review of the Tables of Bankruptcy Statistics for the fiscal year ending June 30, 1941, prepared by the Administrative Office of the United States Courts in accordance with Section 53 of the Bankruptcy Act [11 U.S.C.A. § 81], is informative *Page 148 in this connection. In the first place, 75% of all wage-earner bankruptcies in the entire United States and its possessions arise in the Northern District of Alabama. (Bankruptcy Statistics, supra, Table 1) That fact alone is almost incomprehensible. But there is much worse: the staggering truth is that 90% of the bankruptcy matters concluded during the fiscal year 1941 in that District were no-asset cases (Bankruptcy Statistics, supra, Table 8) The wage-earner's financial experience, in other words, is more generally disastrous in Northern Alabama than in any other section of the country.
"And it is undeniable that this black picture is due in large part to the depredations of small loan operators: the estimated debt of Alabama wage-earners to such operators at the close of 1939 was $3,000,000, or $4.03 for every urban resident of this State. As the average rate of interest charged on such loans is greater than 240%, the wage-earners of this State were milked, in 1939 alone, of more than $7,200,000 in purported interest which they were under no obligation to pay. (See Terrell, Illegal Lending in Alabama (1941) pp. 61-64). The fantastic number of wage-earner bankruptcies in this District is not, then, inexplicable — it is due in large measure to the small loan operators."
In the face of these circumstances was the circuit solicitor powerless? He is expressly authorized by the statute to "prosecute and defend any civil action in the circuit court in the prosecution or defense of which the state is interested." Code of 1940, Title 13, § 229.
It was expressly held in Benners v. State, 124 Ala. 97, 101,102, 26 So. 942, 943: "The solicitor, as the prosecuting officer of the state, was a proper relator in bringing the application for mandamus before the criminal court." The criminal court of Jefferson County was a court of equal dignity with the circuit court in the trial of all criminal offenses.
In Montgomery, Superintendent of Banks, v. Sparks, Tax Collector, 225 Ala. 343, 346, 142 So. 769, a bill in equity to enforce the State's prerogative right of preference, the bill was filed in the name and behalf of the State by "A. L. Hardegree solicitor of the 18th Judicial Circuit," and neither the solicitor nor the Attorney-General was named as relator or otherwise made a party. The solicitor testified in his depositions as a witness, that he was verbally directed by the Attorney-General to bring the proceedings. The court, the Justices voting six to one, sustained the proceeding against a dissenting opinion rested on Ex parte State of Alabama (In re Stephenson), and State ex rel. Almon et al. v. Burke, Judge. See, Montgomery, Superintendent of Banks v. Sparks, Tax Collector, supra.
Here the Attorney-General has not only submitted the case on the assignments of error and supported the same by brief but is now resisting the application for rehearing. This is sufficient to show that he is controlling the litigation, and that is all that is required. Try-Me Bottling Co. et al. v. State, 235 Ala. 207,178 So. 231; State ex rel. Goff County Atty. v. O'Neil,205 Minn. 366, 286 N.W. 316. In the O'Neil case last cited, it was observed: "In this court on this appeal the attorney general has come in and filed a supplemental brief with the county attorney. There can be no doubt of the attorney general's power to step into a cause where the state is a party and take over or carry on the same regardless of the fact that it had been instituted by the county attorney on behalf of the state." 286 N.W. 318.
The want of authority of the solicitor to proceed in the name of the state in the circuit court can not be raised by demurrer, but should, if questioned, be raised by motion as required by § 48, Title. 46, Code of 1940, and in the absence of such motion his authority will be presumed. Doe ex dem. Chamberlain, Miller Co. v. Abbott et al., 152 Ala. 243,44 So. 637, 126 Am. St. Rep. 30; Mitchell v. Church of Christ at Mt. Olive, 219 Ala. 322, 122 So. 341.
We are of opinion that the attorney-general by his official acts in this case has ratified the filing of the bill, and is conducting the litigation for and in behalf of the state.
The dictum in Howard v. State, ex rel. Andrews, Solicitor, supra, that a bill filed by the solicitor was without equity, is disapproved, and the application for rehearing in this case is overruled.
All Justices concur, except KNIGHT, J., not sitting. *Page 149