Notwithstanding the absence of a qualifying statute and in violation of this rule the court has construed this section to vest the authority to institute quo warranto proceedings against a corporation to forfeit its charter or exclude it from doing business in this state exclusively in the attorney-general, and to vest district attorneys with the authority only to institute such proceedings "when the corporation is authorized by its charter to exercise *Page 876 its functions only in a certain county or judicial district of this State or where its charter powers are such that because of the essential manner of the exercises thereof, or because of exclusive physical conditions or situations, or the like, those powers cannot be exercised except in a certain territorial location in the State, so that its ouster in that territory could not be of any real interest to other sections of the State."
As I understand the controlling opinion it rests on three basic theses or propositions, at least one of which must be established in order to justify the construction now given to Section 1121, Miss. Code 1942; these propositions are, (1) the State's Constitution by creating the office of Attorney-General ex vi termini invested its incumbent with all of the power and authority exercised by the English Attorney-General under the common law, among which was to represent the King in the courts in litigation in which he was a party; the state now occupying the position of the King. (2) The Attorney-General being a state officer and the district attorney a state district officer, the Constitution intends for the Attorney-General to represent the state in the courts in litigation to which it is a party that is of state-wide interest, and for a district attorney to represent it in litigation which affects his district only. And (3) it is more in keeping with the office of each for the Attorney-General to represent the state matters of state-wide interest and for a district attorney to represent it in litigation which affects his district only, and consequently the legislature must have so intended.
Several fallacies lurk in the first two of these theses, and the third presents a complete non sequitur.
It is true that our ancestors brought with them to this country the then substantive common law of England insofar as it was applicable to conditions here, but they did not bring with them the English governmental set-up in any of its branches, and when the states' constitutions were formed after the separation of the colonies from *Page 877 England, each state's official and administrative set-up was determined for itself and was set forth either in its Constitution or statutes. The powers and duties of its officers were such only as were given to them by Constitution or statute, either expressly or by necessary implication. While this court has decided that question both ways so that it is now still open with us, I do not think any good reason can be given that would justify a holding contrary to what I have indicated. Had the original framers of our Constitutions thought otherwise, I am sure they would not have given the name of any English office to any of those created by the Constitutions they were adopting or the statutes they were enacting. But that aside, two among other fallacies lurk in the first of these theses of the controlling opinion, (1) error as to the source from which the English Attorney-General derived his power and authority, and (2) the assumption that the common law insofar as it applies to the powers and duties of the Attorney-General can not be repealed or modified by the legislature.
The power and duties of the English Attorney-General, though frequently referred to as common-law powers and duties, were not in fact such. He was the King's legal adviser and represented him in the courts, and was when the common law came to this country appointed not under any common-law rule but by letters-patent of the King, which set forth what his powers and duties should be, including the courts in which he could appear as the King's representative, and he was at all times subject to the King's supervision and control. 6 Holdsworth's History of the Common Law, 458 et seq. It is true that the common law recognized his right to represent the King in the courts to the extent authorized by his letters-patent, but did not confer or broaden this right.
Section 103 of the State Constitution provides that: "The legislature shall provide suitable compensation for all officers, and shall define their respective powers." This section requires the legislature to do for the Attorney-General *Page 878 of the state what his letters-patent did for the English Attorney-General, i.e., set forth his powers and duties. It has been so understood and acted on by the legislature since it appeared in the Constitution of 1832; and since that time two Constitutions containing the section have been adopted, so that it would seem that the right of the legislature to prescribe the powers and duties of the Attorney-General has long since been set at rest by the people themselves acting through their constitutional conventions.
But it is said that the Attorney-General being the chief law officer of the state has the sole right under Section 173 of the Constitution to represent the state in matters of state-wide interest — a rather novel doctrine when viewed in the light of the legislative history of that office, from which it will appear that the legislature has never so interpreted that section of the Constitution and has, without challenge since Mississippi became a state, conferred on other officers the right to represent the state in matters of state-wide interest, e.g., prosecutions for the commission of crime and the collection of past due and unpaid state taxes. To hold that the Attorney-General can alone be given the right to represent the state in matters of state-wide interest would nullify many of our statutes, particularly those giving the State Tax Collector the right to sue for unpaid taxes due the state, and a large part of Section 3920, Miss. Code 1942, conferring authority on district attorneys to represent the state in certain matters that are of state-wide interest.
Section 1121, Miss. Code 1942, first appeared, in part, in our statutes in July, 1843, by an act which appears in Hutchinson's Miss. Code as Section 1 of Article 22 of Chapter 15 thereof, at p. 329. By that statute, authority to proceed by quo warranto against banks for violation of its charter and persons unlawfully exercising the franchise of being a banking corporation was conferred on district attorneys alone. By Article 12, Section 4, of Chapter 35, Rev. Code of 1857, this authority of district attorneys *Page 879 was broadened so as to authorize them to proceed by quo warranto against all private corporations. By Section 1491, Rev. Code of 1871, this authority was conferred for the first time on the Attorney-General, the second providing that quo warranto proceedings may be begun "by the Attorney-General or district attorney of the proper district." By Section 2585, Rev. Code of 1880, this authority was again conferred on district attorneys only. By Section 3521, Ann. Code of 1892, and Section 4018, Code of 1906, this authority was conferred on the Attorney-General "or a district attorney."
But even if under Section 173 of the Constitution we may look to the common law for powers of the Attorney-General not expressly conferred by statute, that law is not sacrosanct but is subject to repeal or modification by the legislature. That the legislature has this power is so universally acted on by it and recognized by the courts that I shall not pause to further discuss it.
The fact that the Attorney-General is a state officer and the district attorney is a district officer might well have been, and probably was taken into consideration by the legislature in enacting Section 1121, Miss. Code 1942, and its predecessors, but what power and authority should be given to each was wholly for the legislature's determination and should not enter into the court's interpretation of Section 1121 of the Code, for the reason that that section is plain and unambiguous. Much has been said, and more intimated, as to the lack of wisdom in permitting district attorneys to represent the state in litigation of state-wide interest, particularly in quo warranto proceedings. If such lack of wisdom there here be the court has no concern therewith, for its duty is to enforce a valid law whether in its judgment it is a wise one or not. But I do not think that criticism can here be brought against the legislature; for aught I or my associates know, it may have thought, as I do, that it would be unwise to vest one man only with the right to determine whether a quo warranto proceeding should be instituted against *Page 880 a law-breaking corporation. It may have thought, for aught I know, that cases might arise in which a corporation was so flagrantly violating the laws of the state, as the petition here charges that this appellant is, that if a domestic corporation, its charter, and if a foreign corporation, its right to do business in this state, should be revoked; and if one man only were authorized to proceed against it, he might mistakenly think that no such proceeding should be instituted, when another having the same authority might correctly think otherwise and proceed against the corporation as the statute contemplates.
As here amended by construction, the statute permits district attorneys to institute quo warranto proceedings against corporations under circumstances which do not arise. Domestic corporations are not chartered, and foreign corporations are not admitted into the state, to do business only in particular localities thereof, and the fact that a corporation confines its business to a particular locality voluntarily, or because of physical conditions, is of no consequence. The state, as a whole, is interested in the observance of its law by corporations which it creates or admits to do business within its borders.
The only difference in this connection between the authority conferred by section 1121, Miss. Code 1942, on the Attorney-General and on district attorneys, is that the Attorney-General may institute a quo warranto proceeding against a corporation in any county of the state in which jurisdiction of it can be obtained, while the district attorneys, under section 3920, Miss. Code 1942, are confined to counties within their districts in which jurisdiction of a corporation can be obtained.
The cases cited in the controlling opinion do not deal with section 1121 of the Code, and, as that section is not ambiguous, are not in point here, except insofar as they may be thought to bear on the constitutional validity of that section; and the phrase "state-wide interest" does not appear in our Constitution or statutes, but is a catchy and convenient phrase coined by this court and interpolated *Page 881 without warrant therefor into the statutes governing the powers and authority of the Attorney-General and district attorneys.
I also dissent from the holding that in a quo warranto proceeding for the exclusion of a foreign corporation from doing business in this state, where the jury has found the corporation guilty of the unlawful acts charged against it, that the court is without power to render any judgment thereon except one excluding the corporation from doing business in this state. Whether the judgment should be one of exclusion, or of a more limited character, rests in the sound judicial discretion of the trial judge. Whether or not that discretion was here abused, as to which I express no opinion, its abuse would not warrant the dismissal of the case, but only the correction of the judgment rendered.