concurring:
I am in entire concurrence with the opinion in this case. In view of the fact, however, that my own investigation as to the office of Attorney General had proceeded on lines slightly differing from those heretofore expressed, I have concluded it may not be inappropriate that the result of this investigation be set forth, even at the expense of desirable brevity.
I conceive there are two questions for consideration:
(1) Whether or not the rights, if any, of the Attorney General have been waived by his failure to interpose, in the court below, any objection to the representation of the Delaware Liquor Commission by counsel of its own selection, and the making of such objection for the first time in the Supreme Court.
(2) A consideration of the broad question of the powers of the Attorney General in Delaware. Included in this question is the discussion of the power of the Legislature to enact statutory legislation granting to a State agency authority to select legal representatives, and, secondly, whether the Legislature has aptly granted such authority.
The interest and importance of the second question prompts its primary consideration.
Any rational discussion of the powers of the Attorney General in Delaware must include (a) the powers and duties appertaining to the office of Attorney General as it existed at common law, (b) how those powers have been *437considered in other American jurisdictions following our separation from England, and (c) the manner of construction of these powers in connection with the Constitution, statutes or polity of the State of Delaware.
(a) It would avail but little to enter upon any prolonged discussion of the obscure origin and the development of the office of Attorney General as it existed in England. Any such effort would be the mere restatement of the conclusions arrived at by legal historians better qualified for the task. From Bellot “The origin of Attorney General” 25 Law Quarterly 400, and 6 Holdsworth “History of English Law” one gathers that originally the King had a number of attorneys appointed by letters patent describing their duties and the area and courts as to which their authority extended: that gradually it became the tendency to supersede these attorneys by the appointment of a single attorney with power to appoint deputies. King’s Sergeants had their origin in the desire that the Crown should be represented in litigation, and the question of primacy between the King’s Sergeants and the Attorney General was of slow development. Blackstone (Vol. 3, p. 27) states that the King’s Premier Sergeant was entitled to precedence, and Holds-worth (Vol. 6, p. 471) states that the Attorney General had much the same powers as the King’s Sergeants. It is there intimated that the Sergeants were persons solely concerned with the law, but that upon the restoration of the Stuart Dynasty the requirements of the sovereign necessitated that he obtain from the Attorney General not merely legal aid, but political and personal advice as well, and that with membership in Parliament the primacy of the Attorney General as the chief law officer became established. It seems certain that the Attorney General became the chief law officer of the British Crown and that the office, eo nominee, became known in most American states.
(b) It is material, of course, to see in what manner other jurisdictions have considered the powers and duties of the Attorney General. It is only possible to bring some *438measure of order from the maze and chaos of conflicting opinions by dividing the jurisdictions into certain general groups depending upon the constitutional provisions con- . cerning the office, and the recognition accorded the common law status of the office. Even this bourse is most unsatisfactory.
States like Indiana and Oregon seem to have no constitutional provisions concerning the Attorney General. Oregon seems to recognize the common law duties of the office, and Indiana does not.
Another group of upwards of fourteen states provide in their Constitution for an Attorney General whose duties “shall be such as are prescribed by law.” Some nine of these states subscribe to the common law powers and duties, and five jurisdictions do riot.
A number of other states, like our own, merely provide in their constitutions for an Attorney General, but make no mention of the duties of the office. These States include Iowa, Kansas, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico and Pennsylvania, and possibly others. Of these States Iowa and New Mexico refuse to recognize the common law status of the Attorney General. Most of the others recognize such powers, and Mississippi has decisions both ways. Decisions like Board of Public Utility Commissioners v. Lehigh Valley R. R. Co., 106 N. J. L. 411,149 A. 263, and Com. ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524, strongly present the law in those jurisdictions. In New York the lower courts in a number of cases have considered the powers and duties of the Attorney General, and concluded that these powers and duties were of common law origin. These cases include: People v. Miner, 2 Lans. 396; People v. Kramer, 33 Misc. 209, 68 N. Y. S. 383; People v. Santa Clara Lumber Co., 55 Misc. 507, 106 N. Y. S. 624. The same State in the only appellate decision of Ward Baking Co. v. Western Union Telegraph Co., 205 App. Div. 723, 200 N. Y. S. 865, seems to express some doubt *439as to the question, especially as to criminal investigations. Articles of interest as to common law powers and duties of the Attorney General may be found in 16 N. C. Law Review, 282, and 25 Journal of Criminal Law, 358.
A general view of the authorities in other jurisdictions plainly indicates that, the great majority hold that the office of Attorney General was vested with certain common law powers and duties which still exist, except as modified by statute.
(c) There then remains to be considered the construction that must be given to the powers of the Attorney General under the Constitution, statutes and polity of the State of Delaware. A short historical account may not be inappropriate.
In March, 1681, William Penn received a Royal Charter for all the land that now constitutes the State of Pennsylvania. This Charter provided for all the details of government, including the appointment of officers, and other matters of administration. This Charter did not cover or embrace the counties of New Castle, Kent and Sussex, then known as “The Three Lower Counties,” and now constituting the State of Delaware.
The last mentioned counties had been claimed by and were under the government of the King’s brother, James, Duke of York. For them no Royal Charter had been given. In August, 1682, the Duke of York made a deed to Penn for these Three Lower Counties. In it there was no mention of any right of government, appointment of officers, or any other matters of administration. The deed did not emanate from the Crown, but from the Duke of York. In October, 1682, the then three counties of Pennsylvania were joined with the Three Lower Counties by an Act of Union, and were governed from 1682 until 1703 by one Assembly, composed of representatives from each county.
On October 25, 1683, is the first reference to an Attorney General. On that date John White was “made Attorney *440General to plead the cause between” the Governor and two named individuals. Others were subsequently named, and on April 14, 1686, Joshua Barkstead was commissioned as Attorney General for the County of Sussex, and John Bradshaw as Attorney General for Kent County. It may appear from this that there was a prosecuting officer in each county, who was called Attorney General.
In 1703 the Three Lower Counties, now constituting the State of Delaware, entirely separated from the Province of Pennsylvania, established their own Assembly, and never afterwards joined the Province- in legislation. The only common bond was that the same Governor, under the Penns, acted, by' approval of the Crown, for the Lower Counties as well as for the Province of Pennsylvania.
It is not clear who, if anyone, acted as Attorney General for the Delaware counties during the first twenty years of their separation. On November 7, 1723, Governor Keith commissioned David French to be Attorney General. He was given full power to implead and prosecute all criminal offenses and “to commence and prosecute all other matters, suits and actions whatsoever in any Courts of law or Equity within the counties aforesaid wherein our Sovereign Lord the King, his Lieutenant and Deputy Lieutenant Governor for the time being of his Majesties Government are or shall be concerned.”
The Commission was operative solely during the pleasure of the Governor. French is the first known Attorney General appointed exclusively for what is now the State of Delaware, and from 1723 until after the Revolutionary War he, with William Shaw, John Ross, Samuel Chew, George Read and Jacob Moore occupied the office of Attorney General. Little of their activities, other than the prosecution of criminal cases, has come down to us, although there is at least one instance, in 1739, of the rendition of a written opinion to the Governor, and between 1758 and 1772 at least *441three bills in Chancery were filed by the Attorney General, for enforcing and setting up a charity.
In September, 1776, the first Constitution of Delaware was adopted. By Article 12 the office of Attorney General was mentioned by name, but with no specification of powers or duties, but with a term of five years. The appointment to the office was placed in the Governor and Privy Council, duly provided for. The Constitutions of 1792 and 1831 again mentioned the office of Attorney General with no specification of powers or duties, but placed the appointment with the Governor, alone. The present Constitution of 1897 again mentioned the office without mention of powers or duties, but reduced the term of office to four years, and made the office elective.
Now in order to ascertain what powers and duties inhere in this constitutional office of Attorney General, and what authority the General Assembly possesses with regard to these powers and duties, it is material, I assume, to consider the status when the office first became a constitutional-one. For this purpose we return to the Constitution of 1776.
In the Constitution of 1776 the office of Attorney General is named, together with a number of other officers, without any specification of powers and duties. Now either these offices had some powers and duties attached to them or they were empty shells with no powers and duties at all. Some of the offices had no counterpart, in name at least, at the common law. The office of Attorney General had, and the office had been well known in the Colony. Did the framers of the first Constitution contemplate that those offices which had had no counterpart at the common law should have as appertaining to them those clear and certain powers known to the framers of the Constitution and to the people, and that other offices, like that of Attorney General, also mentioned by name only, should embrace, solely by reason of that name, powers unknown to the people and only discoverable in the distant common law? I think that when the *442framers of the Constitution created an office by name only they had reference to that office with those generally recognized legal powers, duties and functions belonging to the office in the jurisdiction in which the Constitution was to operate and at the time of the adoption of the Constitution.
In People v. Miner, 2 Lans., N. Y., 396, certain common law powers of the Attorney General were set out. These included criminal prosecutions; actions by scire facias, quo warranta and mandamus to revoke forfeited grants, inquire into the title of an office, or compel the admission of an officer to an office. They are stated to have included proceedings to enforce trusts and prevent nuisances, recover property for the Crown, and protect lunatics and certain other persons under disability. Whether all these powers were exercised by the Attorney General here in Delaware it is not necessary to determine. It is certain that some were, and.it may be that all these powers were exercised or understood. We are not primarily concerned with the exact list of powers and duties appertaining to the office of Attorney General, but rather with the question as to any authority in the Legislature to make some change in these, so-called, inherent powers, even though remotely derived from the common law.
Article 25 of the Constitution of 1776 says:
“The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature * •
It would seem that no common law was ever adopted in this State, except such as might be altered by a future law of the Legislature. Nor could it well be. The common law is largely founded on custom long acquiesced in or sanctioned by immemorial usage. It always bends and gives way to express statutory enactment intended to be in direct opposition. The common law powers inhering to an office are, at most, a part of the common law, and can rise no higher than their source.
*443Now let us see for a moment from what source the common law powers of the Attorney General were derived. Since he was always appointed and removed at the pleasure of the Sovereign, then at that pleasure the powers and duties could, by commission or patent, be increased or diminished. So it was with our Colonial Governors who had power to appoint and revoke the appointment at pleasure and to indicate the powers and duties pursuant to that appointment. The indication of powers was a prerogative of the Crown. Upon the dissolution of the relationship between Great Britain and the inhabitants of this Colony the prerogatives of the Crown or of the Colonial Governors were vested in the people themselves. The people, except as expressly restrained by their own Constitution, act through the Legislature. The powers of the Legislature to employ its own counsel has never been questioned, but it is denied that the Legislature can create a state agency and authorize it to appoint counsel.
I am of the opinion that the Attorney General is the chief law officer of the State, clothed, except as altered by the Constitution or by legislation, with the powers and duties, criminal and civil, which inhered to that office when it first became a constitutional one.
I am equally of the opinion that the General Assembly, holding, except as restricted by the Constitution, the residuum of power and, as “parens patriae,” the prerogatives of sovereignty, can add to or subtract from the common law powers of the Attorney General, to the same extent as the Sovereign could have done before the State came into being, and when the powers were created by or acquiesced in by the Sovereign. If this were not true, then much legislation concerning sheriffs, coroners and other constitutional officers of common law origin, whose duties are not expressly defined, would suffer from the same taint. Thus could be brought into question much legislation enacted through the century and a half of the State’s existence, touching the *444care and custody of prisoners and the manner of selecting juries, and countless other modifications of common law duties of an officer, where merely the name of the office was carried into the Constitution. Thus as of 1776, when the first Constitution was adopted, would be crystallized many of the most important relations of society, and the people, through the legislative branch, could neither make needed and desirable improvements nor, possibly, even correct abuses.
It is upon the basis here suggested that local prosecuting officers have, in larger states, been carved out of the office of Attorney General. While the Attorney General normally has control of litigation in which the State is interested, yet the State itself must of necessity be the ultimate arbiter of such litigation. Almost all of the States, with the exception of Illinois, concede the powers of the Legislature by express action to lessen the common law powers of the Attorney General. That State alone denies to the Legislature authority to modify the common law powers of the Attorney General, under a constitutional provision that the powers of the Attorney General should be such as “may be prescribed by law.” The Delaware case of State v. Morris, 1 Houst. Cr. Cas. 124, is not, I think, inconsistent. That case was decided in 1863, under the Constitution of 1832. Under that Constitution the Governor alone had the power of appointment of the Attorney General. The Legislature had appointed designated persons to entirely displace the Attorney General in certain criminal proceedings. It was upon the ground that the Attorney General was the exclusive appointee of the Governor that the case was determined by two Judges with the Chief Justice dissenting.
There then remains the question as to whether the Legislature has aptly granted the authority contended for. In the absence of legislation the authority and the duty of the Attorney General to appear in court for the State or its immediate agencies has, I think, been universally recbg*445nized. If this authority is to be lessened or changed in any manner it should be done by express legislative action.
The Act in question, by See. 6134, Revised Code, 1935, gives to the Liquor Commission the power:
“(9) To appoint or employ every officer or employee necessary for the carrying out the work of the Commission and dismiss them for cause, fix their salaries or remunerations, and assign them their official titles and duties, and to engage the services of experts and of persons engaged in the practice of a profession.”
I am not prepared to say that the term “persons engaged in the practice of a profession” excludes one practicing the profession of law. The very universality of the term indicates the disinclination of the Legislature to indicate the precise professions to be covered. I am not prepared to say that a person engaged in the practice of law may not be engaged, render advice or assistance necessary in “carrying out * * * the work of the Commission.”
That question is not now before us. There may be a distinction between legal service arising in the performance of routine duties in “carrying out * * * the work of the Commission” on the one hand, and the actual appearance in court as the representative of the State on the other, and when it is intended to grant the power to represent the State or one of its agencies in court, either in conjunction with or in derogation of the existing power and duty of the Attorney General, such power should be so expressed as to leave no doubt as to the intention of the Legislature.
In the present case the objection to the representation of the Liquor Commission in court by private counsel, as distinguished from the Attorney General, was first raised in this (Supreme) Court. The record discloses that the Attorney General knew of the proceeding in the court below and of the representation there by private counsel, and made no objection thereto. I think that the question of representation is one of procedure and is not jurisdictional, and not having been raised in the court below it cannot be raised for the first time in this court.