(concurring specially). This is a prosecution before a justice of the peace, under Comp. Laws, § 9989, Laws of 1913, chap. 2. After hearing on an order to show cause the district court gave judgment dismissing the prosecution and the justice of the peace appeals. The case presents three questions on each of which the appeal may be dismissed or the judgment affirmed.
1. The prosecution was commenced; the warrant issued and the arrest made without the consent and against the will of the state’s attorney and the attorney general.
2. The complaint does not state facts sufficient to constitute a public offense.
3. The justice of the peace was' no party of record, he had no interest in the case, and hence no right to appeal:
The last point needs no argument. The justice was neither plaintiff nor defendant; dismissal of the case was of no concern to him; he had no rights as a party to the action.
The rule is that criminal prosecution must be conducted in the name, and by the authority, of the state, and by' the state’s attorney. The statute reads: "
“When a complaint is made to a magistrate, charging the commission of a public offense, before issuing a warrant, he must submit the matter to the state’s attorney for approval, or disapproval,' and if the state’s attorney disapproves, no warrant shall be issued.” See. 10535.
That is the rule with a few exceptions. In this case, the state’s attorney did not approve the issuing of a warrant and for good reasons he disapproved it, and for that reason alone it was competent, for the district court, to order a dismissal of the case.
2. The eompláint does not charge a public offense; it is framed under *432the statute against false and misleading advertising. Comp. Laws 1913, §.9989. The statute is in effect that any person who, with intent to sell certain specific things, including services, publish concerning the same any advertisements or representations of fact which are untrue, deceptive, or misleading shall be guilty of a misdemeanor. The complaint avers that in January, 1921, defendant committed the crime of false and misleading advertising with intent to sell and dispose of services, to wit: Sendees of accountancy, directly or indirectly to the -public, did, in divers ways publish advertisements of a certain sort regarding services, to wit: Services as a certified public accountant, and to offer the same to the public, which advertisements contain assertions, representations, and statements of fact which were then and there untrue, deceptive and misleading.
The complaint does not state any alleged untrue advertisements, assertions, or representations, nor does it state wherein the same is untrue, misleading or deceptive. It is similar to a complaint for perjury, alleging that in a certain action the accused did wilfully and feloniously swear falsely, without any averment, showing the false testimony or its untruthfulness. It is similar to an averment that at a certain time and place defendant did feloniously steal, take, and cany away a great lot of personal property, without any averment describing the property, or its value. It is similar to a complaint for libel and slander without any averment showing libelous statements. In all such cases the pleading must be specific, definite, and certain. A party cannot state a cause of action based on a false statement, or advertisement, without alleging the statement or advertisement. The averment that a party made any number of false and deceptive or slanderous statements concerning a matter amounts to nothing without an averment showing the statements. That is elementary. In a complaint for false and misleading advertising, the advertisement is an essential fact. It is the very basis of a cause of action and hence it must be pleaded, 31 Cyc. subject, Pleading; 21 R. C. L. 438-626.
Inasmuch as the complaint makes no attempt to state any advertisement, or any false assertion, it well fails to state a cause of action, and hence the justice court had no jurisdiction.