(dissenting). The right of the state’s attorney to appear before grand juries for the examination of witnesses, To the exclusion of all other persons except a witness actually under examination, has existed by statute since long before the office of territorial attorney general was created. Section 195, chapter 3, of the Code of Criminal Procedure of 1877 provided that the “District attorney may, at all times, appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable before them, and may interrogate witnesses before them whenever he thinks it necessary; but no other person is permitted to be present during their session except the members and a witness actually under examination.” This section has been in force by express amendment ever since its enactment, and is now section 9829, Revised Codes 1905.
Under chapter 8, laws of 1883, creating the office of attorney general and defining his duties, there is nothing indicating that the attorney general was given any express authority to draw indictments or appear before the grand juries. Besides being authorized to appear for the territory in the Supreme Court to “prosecute and defend” all actions, civil or criminal, in which the territory was interested as a party, he was authorized to appear before any other court and “prosecute and defend in any cause or matter, civil or criminal.” Nothing in that act can be construed to give him any authority to appear before grand juries. The duties of the attorney general were again a matter of statutory enactment in chapter 110, laws of 1890, known as the “Prohibition Law.” The provisions of section 12 of that act are set forth in the opinion of Judge Carmody. Without doubt, that section warrants a construction that under certain circumstances the attorney general could properly appear before grand juries in the place of the state’s attorney, whenever that official has failed to perform the duties of his office; but it is expressly stated by the attorney general in the record in this case, that he does not claim that the *837state’s attorney of Burleigh county has not fully and faithfully performed his whole duty in reference to the enforcement of the prohibition law. Hence, it needs no further comment to show that the attorney general is not authorized to go before the grand jury under that section, under such facts.
The duties of the attorney general and the duties of the state’s attorneys were again the subject of enactments in chapters 24 and 178 of the laws of 1901. In said chapter 24, prescribing the duties of the attorney general, he is given no express power to appear before grand juries. In this chapter, his duties are, in part, “to consult with and advise the several state’s attorneys in matters relating to the duties of their office; and when, in his judgment the interests of the state require it, he shall attend the trial of any party accused of crime and assist in the prosecution.”
It is not contended by the attorney general that this subdivision confers upon him any authority to appear in an advisory or other capacity before grand juries, and such contention would be repugnant to the terms of this subdivision, which confers authority only upon him to assist the state’s attorney in criminal trials, whenever he deems it necessary for him to do so, in the state’s interests. Under the provisions of section 9, of chapter 178, it is claimed that the power is expressly granted to the attorney general to appear, generally, before grand juries. That section, so far as material, reads as follows: “It is the intention of this act to make the attorney general, his assistants, and the state’s attorney the only public prosecutors in all cases, civil or criminal, wherein the state or county is a party to the action, and that they only shall be authorized and empowered to perform the duties herein set forth, except as hereinafter provided. The attorney general or his assistants are authorized to institute and prosecute any cases in which the state is a party, whenever in their judgment it would be to the interests of the state so to do, and in case the state’s attorney of any county refuses or neglects to perform any of the duties prescribed in subdivisions 2 and 3 of this section, after it has been properly brought to his attention, or when he has information that a public offense has been committed, or that a civil suit in which the state is a party should be instituted, and the fact of such refusal or neglect to perform such duty, and that the action is one that should be prosecuted, has been brought before the judge of the district court in the judicial district having juris*838diction of such actions, by affidavit or otherwise, and said judge is satisfied that such action should be prosecuted, and that said attorney has failed or neglected to perform his duty, then, in that case, he shall request the attorney general or an assistant attorney general to take charge of such prosecution, or he shall appoint some suitable person, an attorney at law, and the person so appointed shall thereupon be vested with all the powers of such state’s attorney for that action, but for no other purpose, and the district court shall, by order, to be entered in the minutes of the court, fix his fees therefor, etc., etc.”
Subdivisions 2 and 3 referred to in section 9, refer to the duties of state’s attorneys in reference to instituting proceedings before magistrates for criminal offenses and attending before and giving advice to the grand jury whenever cases are presented to them for their consideration, and drawing of indictments and informations, and prosecuting actions on forfeited bonds, and prosecuting of actions for the recovery of debts, fines, penalties or forfeitures accru-' ing to the state or to his county. The provision in said section 9 that the attorney general and his assistants, and the state’s attorney are “authorized to institute and prosecute any case in which the state is a party,” in no way authorized the attorney general to appear before grand juries, and that provision in no way refers to grand jury proceedings. Appearing before a grand jury in a criminal matter for the purpose of .advising such grand jury or examining witnesses is not “instituting or prosecuting a case in which the state is a party.” That chapter was not enacted, as is known as a matter of history, and as shown by its reading, with a view to changing the procedure in reference to appearance before grand juries by the state’s attorney. That chapter was enacted to obviate certain alleged abuses which had become prevalent in the state in prosecuting injunctional and abatement proceedings by assistant attorneys general throughout the state, whereby it was claimed that excessive costs and attorney’s fees were taxed against buildings where nuisances were kept and maintained. The object of this chapter was to limit the right to bring such injunctional proceedings to states attorneys, attorneys general and their assistants. It was intended to debar or prohibit the appointment of assistant attorneys general, who would not look to the costs to be assessed against the real estate or buildings where nuisances were kept and maintained, and the nuisances declared abated, for their compensation.
*839The portion of section 9 referring to failures of state’s attorneys to perform the duties, as contained in said subdivisions 2 and 3 of that section, cannot be claimed as applicable under the facts, as admitted by the attorney general, to the effect that there is no contention that the state’s attorney has failed to fully perform his duty. Irrespective of that fact, the attorney general has no authority to act in the premises except on the request of the judge of the district court. The record in this case does not show that .the attorney general was requested to act, nor does it show that the state’s attorney has failed to perform his duties.
The attorney general practically concedes that no express authority exists for the official displacement of the state’s attorneys, and the substitution of the attorney general in the performance of all duties before grand juries, for them. The attorney general is forced to claim that there is no statute unconditionally authorizing him to appear before the grand juries unless the word “advise,” as used in subdivision 4, chapter 24, Laws of 1901, is construed to mean “supervise.” I find no authority for adding or enlarging the meaning of the word “advise,” and if, for certain purposes not apparent, the word “advise” may be construed to mean “supervise,” it would not be authority for the attorney general to appear before grand juries in the place of the state’s attorney. I do not think that the attorney general is right in his contention that a new meaning shall be given to the well-understood word “advise.”
It must not be forgotten that the attorney general is contending for the right to go before grand juries in all cases and under all circumstances when criminal causes or matters are under investigation. This should not be held to be his right from, or by construing, fragments of statutes, but it should clearly appear that such right was intended to be granted to him before the attempted innovation be sanctioned by this court. Such a radical revolution in procedure should not be established by singling out certain words or sentences, and stretching their meaning. The various statutes should be construed together, and therefrom it should be determined whether the legislature intended to supplant the state’s attorneys in every county if it be the will of the attorney general to do so. This should not be construed to be the law bjr doubtful or uncertain implication.
Every enactment considered in the majority opinion can be construed consistently with retaining section 9829, Revised Codes 1905, *840in full force, and vigor. If the attorney general may appear before grand juries, then that section has been materially amended without being so understood by district judges, state’s attorneys or attorneys general dealing with that section during the past twenty years.
I shall not review the cases relied on in the majority opinion to uphold the attorney general’s contention. On reading them I think it a plain conclusion that they are each based on statutes entirely dissimilar, or upon circumstances bringing them within statutes like our own. The only question considered by me in this case has been whether the statutes of the state, when construed together, authorize the attorney general to appear before grand juries, other than in the exceptional cases above mentioned, and my conclusion is that no such authority has been granted to him.
I therefore respectfully dissent from the conclusion written by my brother, Carmody. I am authorized to say that Judge Fisk concurs in the views above expressed.