The judges who dissented from the original opinion herein could well stand upon the views and authorities cited in the dissenting opinion; but, since the opinion on the suggestion of error therein, the affirming judges have squarely placed their opinion upon the proposition that the court has a discretion in quo warranto, which it may exercise in refusing aid to the state, where, in the opinion of the court, a suit would injure rather than help the general welfare.
I think this is a very dangerous power for the court to assume, and one that has not been conferred upon it by law.
The state, in partiting the powers of government, has designated to particular officers certain powers, and in such case the officer to whom the power is designated represents the state, and is responsible for the exercise of his discretion and judgment. By section 3217, Hemingway's 1927 Code, section 4018, Code of 1906, power to institute proceedings in quo warranto is conferred upon the attorney-general or district attorney. This section is a specific designation as to who shall institute such proceedings. It provides as follows:
"The proceedings in such cases shall be by information, in the name of the state, by the attorney-general or a district attorney, on his own motion or on relation of another," etc.
The attorney-general and district attorney are given the power, by the legislature, to institute this proceeding, *Page 878 upon their own motions, and they are not required to obtain leave of the court, or leave of any other person. Such attorney-general, or district attorney, is the officer to whom the state has confided the power and discretion with reference to whether a suit shall be brought. The court is nowhere given this power, and did not have it at common law. The court's power is derived from the Constitution, statutes, and common law, and it has no other powers than those conferred.
In my opinion, it is peculiarly appropriate that this discretion is conferred in this manner. The expediency and wisdom of bringing a suit, or refraining from so doing, is hedged about and commingled with economic and political considerations. The court should confine its activities to decisions upon the merits of suits when they have been brought, and to administering justice according to law, entirely separate from the expediency or righteousness of the litigation. At the common law, the attorney-general brought quo warranto proceedings upon his own motion and of right. He was supposed to represent the King in so doing, and not the judicial or legislative branches of the government. In addition to the authorities heretofore cited upon this proposition, see 17 Encyc. Pl. and Pr., p. 444, where it is said: "At common law the attorney-general had the right ex officio to sue out a writ of quo warranto or to bring an information in the nature of a quo warranto on behalf of the sovereign without leave of court, it being a writ of right for the sovereign" — citing Attorney-General v. Sullivan,163 Mass. 446, 40 N.E. 483, 28 L.R.A. 455; Rex v. Trelawney, 3 Burr. 1616. Subsequently, Parliament passed acts requiring leave of the court to be obtained by one seeking a writ of quo warranto, but these English statutes were never adopted in Mississippi as a part of the common law. This accounts for the difference in the decisions of courts. In most of the states, they have adopted the English statutes passed prior to the Revolution, as a part of the common law. At page 488, 17 Encyc. *Page 879 Pl. and Pr. it is said: "(a) But the attorney-general, in the exercise of his common-law and inherent powers to file ex officio informations, still has the right to act in such proceedings upon his own motion and without leave of court, either in filing an information or in suing out the writ where the latter is the proper remedy. (b) The attorney-general or other representative of the people is the officer in whom is vested the discretion to institute quo warranto proceedings on behalf of the people, unless otherwise provided by statute, and with this discretion courts will not interfere, unless, as is held in some cases, there is a clear abuse of discretion."
The "some cases" referred to are cases where, under the peculiar jurisprudence and common law of the state, the English statutes existing prior to the Revolution were adopted. As above stated, these statutes have never been adopted in Mississippi. The discretion has been confided to the attorney-general or the district attorney in this state, and I am satisfied that these officers are safe repositories of that power, and that we are not called upon to supervise them in the exercise of their discretion. I think it would result injuriously to the public interest to do so. I know of no greater danger to the court than to assume powers not conferred upon it by law. It is the one branch of the government whose decisions upon constitutional questions and legal constructions are not subject to review by any other department. Its decisions can only be corrected by statute or constitutional enactment.
SMITH, C.J., and McGOWEN, J., concur.