(dissenting) : The state government is not modeled on the cabinet system. On the contrary, the constitution expressly provides (Const, art. 1, § 1) that the executive department shall consist of a governor, lieutenant-governor, secretary of state, auditor, treasurer, attorney-general, and superintendent of public instruction. These officers are all chosen by the people, all under like oath and alike subject to impeachment. Each has a field of official discretion which can not be invaded by any other officer. It is the unquestioned and' unchanging law that official discretion can not be controlled by mandamus. As said in Martin, Governor, v. Ingham, 38 Kan. 641, 17 Pac. 162:
“The only acts of public functionaries which the courts ever attempt to control by either injunction or mandamus, are such acts only as are in their nature strictly ministerial; and a ministerial act is one which a public officer or agent is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to his own judgment or opinion concerning the propriety or impropriety of the act to be performed.” (p. 651.)
Here, in order to form the basis for the issuance of the writ, it has been necessary to rule that the act directed to be done is one clearly ministerial and outside the pale of discretion. This conclusion is founded on a *193provision of the statute that the attorney-general shall, “when required by the governor or either branch of the legislature, appear for the state and prosecute or defend, in any . . . court, or before any officer, in any cause or matter, civil or criminal, in which this state may be a party or interested.” (Laws 1879, ch. 166, § 71, Gen. Stat. 1909, § 8906.) This section vests no •other or greater power in the governor than in either branch of the legislature, and the effect of the decision is that the requirement by the latter would be compulsory upon the attorney-general to subpoena before himself or some other officer any certain witness which either house of the legislature should deem requisite.
While the word “prosecute” does doubtless imply the •commencement as well as the continuance of a proceeding, it is well to notice the language of the statute under which inquisitions may be held. Section 4366 of the General Statutes of 1909 (Laws 1909, ch. 164, § 6) provides that it shall be the duty of the attorney-general, upon proper notification, forthwith diligently to inquire into the facts of the alleged violation of the prohibitory law, and for that purpose he is “authorized” (not required) to issue subpoenas for such persons as he shall have reason to believe have any information, etc. The same section expressly provides that, “if the testimony so taken shall disclose the fact that an offense has been committed, . . . the attorney-general -. . . shall prosecute the person-or persons committing such offense.” Hence, under this statute, the duty to prosecute and the beginning of a prosecution can arise •only after the testimony has been taken, and the taking of such testimony is not a prosecution or the beginning thereof, but a mere step preparatory thereto. A mere preliminary step taken in view of a possible future prosecution can not, without wresting language from its ordinary meaning, be held to be included in the section requiring the attorney-general to appear for the *194state and prosecute or defend in any cause or matter. In an inquisition the attorney-general is not defending any one and is not prosecuting any one, but is merely procuring testimony in order to see whether a prosecution shall be instituted.
In- a county where the county attorney fails or refuses to enforce the law, section 4378 of the General Statutes of 1909 (Laws 1887, ch. 165, § 5) makes it the duty of the attorney-general to enforce it himself, “and for that purpose he may appoint as many assistants as he shall see fit.” Would it be contended that any other officer can dictate to him who his appointees shall be, or whom he shall “see fit” to appoint? He is merely authorized to make such appointments, as he is by the other section authorized to subpoena witnesses. There is no mandatory requirement contained in either. If once the domain of discretion is invaded, if the attorney-general can not be permitted to exercise in good faith his own judgment touching the steps preliminary or preparatory to a prosecution, no reason suggests itself , why he should be permitted to exercise it in respect to the .witnesses he shall call during a trial, the order in which they shall be introduced, the questions he shall propound or the policy to be pursued. Any one who has had experience in conducting prosecutions arising out of the prohibitory law knows that caution and tact, as well as good judgment and legal learning, are necessary, and it is often essential that the prosecutor, instead of putting a hostile witness in position to warn the culprit, let not his left hand know what his right hand doeth.
To require by mandamus the performance of an act so manifestly within the realm of official discretion — . one, at most, authorized, but not required, by the statute — sets, in my judgment, a dangerous precedent, and departs 'from the theory upon which the executive department of the government has heretofore been conducted.