SPECIALLY CONCURRING OPINION. I concur in the majority opinion dismissing this suit but upon a different ground from that stated therein. Under the Constitution the legislature was without power *Page 713 to confer on any officer of the state other than the Attorney-General the exclusive authority to bring this character of suit on behalf of the state. Perhaps the legislature could confer such power on another officer to be exercised in conjunction with and under the supervision and control of the Attorney-General.
The office of Attorney-General is a constitutional office in this state. Section 173 is in this language: "There shall be an attorney-general elected at the same time and in the same manner as the governor is elected, whose term of office shall be four years and whose compensation shall be fixed by law. The qualifications for the attorney-general shall be the same as herein prescribed for judges of the circuit and chancery courts."
It will be observed that the Constitution prescribed the qualifications of the Attorney General but not his duties and powers. The office of Attorney-General was a common-law office. The creation of the office therefore by the Constitution without prescribing his powers, by implication adopted his common-law powers, none of which can be taken away from him by the legislature. State v. Key, 93 Miss. 115, 46 So. 75; Capitol Stages, Inc. v. State ex rel. Hewitt, Dist. Atty., 157 Miss. 576,128 So. 759, 763. The latter was a suit by a district attorney on behalf of the state involving a matter of state-wide interest. It was an action on behalf of the general public therefore. The statute authorized the district attorney to bring the suit. The court held that the Attorney-General alone had the right to bring the suit under the common-law powers which were conferred along with the adoption of Section 173 of the Constitution, and therefore the statute authorizing the district attorney to bring it was unconstitutional. The court in its opinion quoted with approval the following from 2 R.C.L., Secs. 4 and 5, pages 915-917: "`At common law the duties of the Attorney-General, as chief law officer of the realm were very numerous and varied. He was the chief legal adviser of the crown, and was entrusted with the management *Page 714 of all legal affairs, and the prosecution of all suits, civil and criminal, in which the crown was interested.' He had authority to institute proceedings to abate public nuisances affecting and endangering public safety and convenience; he had the power to control and manage all litigation on behalf of the state; he could intervene in all actions which were of concern to the general public, including the right to institute, conduct, and maintain all suits necessary for the enforcement of the laws of the state, the preservation of order, and protection of the public rights."
Undoubtedly a suit of this character involves a matter of state-wide interest. It is an action on behalf of all the public. It is therefore one which the attorney general alone has the right to control. It may be that under the Constitution the legislature would have the power to confer the right upon some other state officer with the consent and under the supervision and control of the Attorney-General. The exclusive right, however, could not be conferred elsewhere.
However, these principles of constitutional law have no application to public suits where only local interests are involved, as distinguished from state-wide interests. The power to bring such suits may be and has been to a large extent, conferred on district attorneys and county attorneys, and might be extended by legislative act to other officers. The common-law powers of the Attorney-General did not include such suits. This is not true, however, as to suits of this character involving state-wide interest. All such suits under the Constitution must be brought either by the Attorney General or by some officer in conjunction with him, and under his supervision and control; and this of course includes both the State Tax Collector and the Chairman of the State Tax Commission. The result would be (and it appears that such a result is very desirable) that there would be a constitutional governing state officer in control of all such litigation. *Page 715 That would be the end of conflicting authority with reference to the subject.