Act No. 125 of 1912, as amended by Act No. 221 of 1920, declares that "it shall be unlawful for any Police Jury, School Board, or State Board or Commission to retain or employ for any compensation whatever any attorney or counsel to represent it generally, or, except as hereinafter provided, to retain or employ any special attorney or counsel for any compensation whatever to represent it in any special matter, or pay any compensation for any legal services whatever." There is no exception as to state boards or commissions domiciled in the parish of East Baton Rouge. The only exception made with regard to state boards or commissions domiciled in the parish of East Baton Rouge is that the district attorney for the Nineteenth judicial district, which comprises the parish of East *Page 365 Baton Rouge, is not, ex officio, the attorney for such boards, as the district attorney in every other judicial district, outside of New Orleans, is, ex officio, attorney for every state board or commission domiciled in his district.
The reason, manifestly, why the legislature — in making the district attorney in each judicial district (outside of New Orleans) attorney, ex officio, of the state boards or commissions domiciled in his district — excepted the district attorney for the judicial district comprising the parish of East Baton Rouge is that there are so many more state boards and commissions domiciled in the parish of East Baton Rouge than there are domiciled in any other parish in the state. But there was no reason why the state boards or commissions domiciled in the parish of East Baton Rouge should have been excepted from the prohibition against the employment of attorneys to represent state boards or commissions generally, or to represent them in any special matter without complying with the requirements of the second section of the statute. That is why the statute does not except or exempt from the prohibition against such unlawful practice the state boards or commissions domiciled in the parish of East Baton Rouge.
In the prevailing opinion rendered in this case, the majority of the members of the court have interpolated an exception where the statute makes none. And the only reason given for the interpolation is that the prohibition is "not applicable to those boards and commissions for which no provision has been made and to which the act does not apply." There is nothing in the act which says that it does not apply to state boards or commissions domiciled in the parish of East Baton Rouge. There is a proviso, at the end of the first section of the act, declaring that it shall not apply to certain specified boards *Page 366 and commissions, but there is no proviso that it shall not apply to state boards or commissions domiciled in the Parish of East Baton Rouge.
I respectfully submit that, in the prevailing opinion rendered in this case, the majority of the members of the court overlook the avowed purpose of the act of 1912. Its purpose was to forbid every subdivision, board, commission, and agency of the state to spend the taxpayers' money by employing attorneys to represent any such subdivision, board, or commission, generally, or by employing an attorney to represent it in any special matter without the approval of the Governor and Attorney General. There was surely no reason for excepting from the prohibition the state boards or commissions domiciled in the parish of East Baton Rouge; hence no such exception was made. The interpolation of the exception, by the court, does not only usurp the function of the legislative department, but defeats its very purpose.
The lengthy argument, made in the prevailing opinion in this case, to demonstrate that the highway commission is not the state itself, is beside the question. No one has contended that the highway commission is the state, or that it is anything more than a state agency or commission. What was decided in State v. Standard Oil Co., 164 La. 334, 113 So. 867, and in the companion case of Board of Commissioners v. Hardtner, 164 La. 632,114 So. 494, and in State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216, and United States ex rel. Louisiana v. Jack, Judge,244 U.S. 404, 37 S. Ct. 605, 61 L. Ed. 1227, was that the Attorney General should bring his suit, not in the name of the state, but in the name of the state agency, or subdivision, on a right of action belonging to such agency or subdivision. *Page 367
The declaration in the prevailing opinion in this case that, "by implication," section 56 of article 7 of the Constitution has confined the duties of the Attorney General and his assistants "to be rendered to those interests possessed by the state as a distinct entity" is indeed a novel proposition. That section of the Constitution declares that the Attorney General, or one of his assistants, "shall attend to, and have charge of all legal matters in which the State has an interest," etc. It is said in the prevailing opinion in this case that the word "interest," as here used, is not to be interpreted in its broadest sense. The substance of the argument on that subject, in the prevailing opinion, is that the state has not an "interest," in the sense in which the word is used in section 56 of article 7 of the Constitution, in a case where a state board or commission is the plaintiff or defendant. I respectfully submit that it has never before been so considered, in this or any other jurisdiction in the United States. 2 R.C.L. 913; 6 C.J. 812, § 18; State v. Finch, 128 Kan. 665, 280 P. 910, 911, 66 A.L.R. 1369. If the state has not an "interest" in matters affecting particularly a state board or commission, why should it be provided in the last sentence of section 56 of article 7 of the Constitution: "They [the Attorney General and his assistants] shall exercise supervision over the several district attorneys throughout the State," etc.? And why should the fifth section of Act No. 125 of 1912 provide that the Governor may, in his discretion, require the Attorney General to render special services to any police jury, parish school board, or state board, or to assume control of a case in which a state board is a party, notwithstanding the district attorney is, primarily, the attorney, ex officio, of such political corporation or state board? Having the power of supervision over the district attorneys, the Attorney *Page 368 General has, necessarily, the authority to represent, as chief counsel, so to speak, any of the subdivisions or state agencies of which the district attorneys, respectively, are the attorneys, ex officio; and the Governor may, at any time, compel the Attorney General to exercise his authority in that respect.
In State ex rel. Miller, District Attorney, v. Reid, Sheriff, 45 La. Ann. 162, 12 So. 189, 190, where the district attorney saw fit not to appeal from an adverse judgment in a suit against intrusion into office, and the Attorney General took an appeal, and his authority so to do was challenged, the court said:
"While it is not doubted that the attorney general had no power or authority, in law, to institute suit as relator, it is equally clear and undoubted that he has the capacity to appear in this court and represent the interest of the state in any given controversy. The duties of that officer are particularly defined in the Revised Statutes, and they declare, inter alia, `that he shall appear for the state in the supreme court sitting in New Orleans, and prosecute and defend all appeals in cases, criminal or civil, in which the state may be a party, or interested.' Rev. St. § 131." (The italics are mine.)
In that case the word "interest" or "interested" was not given the narrow interpretation which it is given in the prevailing opinion in this case.
In State v. Bank of Louisiana, 5 Mart. (N.S.) 327, it was said:
"The authority of the attorney-general to prosecute or defend any suit, in which the state is concerned, does not, however, result from mere presumption. It is necessarily implied from thenature of his office, and is expressly given by the act of assembly, defining his duties." (The italics are mine.) *Page 369
In Succession of Fletcher, 12 La. Ann. 498, it was held that the auditor of public accounts could not ignore the Attorney General and employ other counsel to represent him in his official capacity. And, in Fay, Superintendent of Public Education, v. Jumel, Auditor, 35 La. Ann. 368, it was held:
"The Superintendent of Public Education has no authority in law to appear in person or by private counsel in any suit or other legal process in which he may be a party or interested in his official capacity, but must be represented by the Attorney General or local District Attorney. Any suit instituted by such a ministerial officer in his official capacity, by a private counsel, shall be dismissed by the court ex proprio motu, or on motion."
It is said in the prevailing opinion in this case, with regard to the authority of the Attorney General to represent the state boards and commissions: "Such an interpretation [of section 56 of article 7 of the Constitution] would make the accomplishment of the duties of the Attorney General and his assistants, next to impossible, if not impossible." But the author of that statement overlooks the fact that section 55 of the same article of the Constitution provides that the department of justice shall consist, not only of the Attorney General and a First Assistant and a Second Assistant, but also of all "other necessary assistants and office force." All that the act of 1912 requires in that respect is that there shall be no regular attorney employed to represent any state board or commission or state agency, other than the district attorney, the Attorney General, or an Assistant Attorney General, and that there shall be no attorney employed to represent any such board or commission or state agency in any special matter, except with the approval of the Governor and the Attorney General, and on compliance *Page 370 with the requirements of the second section of the statute. To that end, the Constitution puts no limit on the number of assistants the Attorney General may have. Hence there is nothing impossible, or even "next to impossible," in the performance of the duties imposed by law upon the Attorney General and his assistants.
There is no instance in the history of the state where it has been held or intimated, heretofore, that the Attorney General has not, by the very nature of his office, the authority to represent the state boards and commissions, as their attorney at law.
It cannot be doubted that, before the Act No. 125 of 1912 was adopted, the Attorney General and his assistants were, ex efficio, attorneys for the state boards and commissions domiciled in the parish of East Baton Rouge. Therefore, to say that Act No. 125 of 1912 has taken away from the Attorney General and his assistants the authority to represent these state boards and commissions, and has given to them the authority to employ private counsel, is the same as to say that the statute has had an effect which is directly opposed to the avowed object and purpose of the statute. And that result is accomplished by interpolating an exception, to the provisions of the statute, which the Legislature did not see fit to make.