On Petition eok "Rehearing.
White, J.— The opinion in this case is reported in 68 Pac. 94-6. The appellant petitions for a review as to the *512common-law powers of the attorney general, and as to the proposition that the respondent has waived the right to object either to the form of the action or as to the capacity of the relator. We are satisfied with the views expressed in the original opinion as to the common-law powers of the attorney general. At least, in this class of cases the attorney general has no common-law powers, because the legislature has seen fit to- confer the power or duty ordinarily exercised at common-law by the attorney general upon the prosecuting attorney of the county where the wrong is alleged to have been committed. Before preparing the opinion in this case we examined the case of Hunt v. Chicago & Dummy Ry. Co., 20 Ill. App. 282, relied upon by the appellant. It is true, in discussing the constitution of Illinois and the statutes of that state, which did not undertake to confer the power or duty on any other officer, the court- came to the conclusion that the attorney general of Illinois could exercise the power that the attorney general of • England might exercise at common-law ; but the court in its opinion said:
“There is nothing in our present constitution or statutes which necessitates, in our opinion, a construction which would exclude the attorney general from the exercise of common-law powers in addition to those conferred by the statute.”
Further on the court says:
“It must be admitted that there is no statute imposing upon the attorney general the duty of instituting or becoming a party to any legal proceedings for the protection or preservation of funds held in trust for a public charity. Whence, then, arises such duty? Manifestly from the principles of the common law, which make the attorney general the proper representative of the people of the state in all courts of justice, and charge him with the official duty of interposing for the protection and preser*513vation of the rights of the public whenever those rights are invaded, and there is no other adequate or available means of redress
The prosecuting attorney, by statutory enactment in this state, is a representative of the people of the state in all courts of justice, and is charged with the official duty of protecting the rights of the public. Here the statute of the state, through the prosecuting attorney, furnishes an adequate and available means of redress, and, by imposing on the prosecuting attorney the duty sought to be exercised by the attorney general, necessitates a construction excluding the attorney general from instituting this action in the first instance. The fact that the statute of the state had conferred the power and imposed the duty of exercising that power on the prosecuting attorney distinguishes this case from the case of Hunt v. Chicago, etc. R. R. Co., supra. The state undoubtedly has the right to institute this action through the officer it has selected for that purpose. If that officer were here insisting on a waiver, he would be heard. As the officer who instituted this action was not authorized to institute it, logically it follows that he cannot insist upon a waiver any more than he can claim the right to institute the suit in the first instance. In citing United States v. Throckmorton, 98 U. S. 61, we said:
“Where a bill in equity was filed on behalf of the United States, by the district attorney of the United States, to set aside a patent for land, and it did not appear from the complaint that the attorney general had brought the suit, or that it had been brought under ■ his authority, so that he might be made officially responsible therefor and bound thereby, it was held that the complaint did not contain a statement of facts essential to the relief demanded.”
*514The criticism of the appellant on this part of the opinion is technically correct-. We were in error in saying that the supreme court of the United States held the complaini insufficient. What the court did hold, however, in that case, was that it was essential that it should appear in some way in the record that the attorney general had brought the suit himself, or given authority to bring it, and, if that did not appear, the suit would be dismissed. That court said:
“It- is essential, therefore, to such a suit, that without special regard to form, but in some way which the court can recognize, it should appear that the attorney general has brought it himself, or given such order for its institution as will make him officially responsible for it, and show his control of the cause.”
That ease was cited to sustain the proposition that it was essential to- the cause of action that the suit be brought or authorized by the officer charged by law with the duty of instituting the suit, and in the absence of such showing, a decree dismissing the suit on the merits was right. It is not contended that there is anything in the record in this case showing that it- was brought by the prosecuting attorney, or by his authority, or by the authority of any court, or by the authority of the governor of the state; and we think the principle announced in United States v. Throckmorton is applicable to the case at bar, and sustains the proposition that this action should be dismissed upon its merits, because it is not brought by the officer authorized by law to bring it.
The petition for a rehearing is denied.
Dunbar, Anders, Hadley and Mount, II., concur.