(dissenting). What is the nature of the legal representation due to an official in the Executive Branch, responsible to the Governor, when he is involved in a civil controversy with a member of the public? The statutory words — G. L. c. 12, § 3, up to the word “except”1 — are by no means perfectly instructive on the matter, and I cannot extract much help from the historical account in the court’s opinion. In the end one has to interpret the statute in the light of what appears to be the sense and fitness of things in the organization of government as well as in the relations between administrator and legal advisor.
Of course, in the generality of such litigious matters the Attorney General will decide what is and what is not worth taking to court or defending there, what is or is not to be appealed, and the executive official involved will yield to the judgment of the Attorney General so that — among other practical objectives to be earnestly advanced — the State may speak to the courts in a tolerably consistent and coherent way. It ought to be a rare case in which an official, although disagreeing with the Attorney General as to whether a case is to be brought or resisted or appealed, will refuse to accept the *167advice of the chief law officer of the Commonwealth, who should see the particular lawsuit in relation to the total pattern of the State’s legal affairs. In a singular case, however, in which the official feels justified in persisting in his disagreement with the Attorney General — a case, that is to say, in which he believes that an important position is being surrendered for want of a willing advocate — it should be open to the official to go to his hierarchical superior, the Governor, and express that disagreement. At that point the chief executive, if he supports the official, ought to be able after due discussion to give directions to the chief law officer. Such directions should not be often or lightly given, but the power should be and, I think, is there. Otherwise matters of high importance to the State — or at least considered by the chief executive to be so — might be finally decided not by the responsible operator but by the lawyer.2 In the range of cases supposed, the net result under our statute is, as I see it, roughly the same in the Commonwealth as it is in the Federal establishment; for the purpose it does not make a crucial difference that our Attorney General is an elected constitutional officer, whereas the national Attorney General holds appointive office.
It may be added that an Attorney General need not act against the clear call of his conscience. When directed in the exceptional situation to argue a cause truly repugnant to him, he steps aside and gives way to special counsel.
I would accord so much primacy to the Governor. The opinion of the court intends to give a measure of primacy to the Attorney General, but leaves unclear just what it *168is. “ [W]here there is a policy disagreement between the Attorney General and the Governor or his designee,” says the opinion, “the appropriate procedure would be for the Attorney General to appoint a special assistant to represent the Governor’s interests.” Well and good. But then the opinion adds, “It is only where the Attorney General believes that there is no merit to the appeal, or where the interests of a consistent legal policy for the Commonwealth are at stake, that the Attorney General should refuse representation at all.” But such characterizations — “policy disagreement,” “consistent legal policy” — are open to varying interpretations, and here, if I understand the court, the Attorney General is to decide. Even so, the Attorney General “cannot act arbitrarily and capriciously or scandalously,” and “ [w]e do not preclude recourse to the courts where such is the case.” Thus there is a suggestion that the judiciary has the last word.
I acknowledge there may be wisdom sometimes in leaving the boundaries of power unclear, for if uncertainty generates confusion, it may also promote a healthy competition in the public interest. But I see no value in unclarity for the class of which the present case is an example. I would declare on the present facts that, if the Governor directs, the Attorney General is required by the statute to prosecute the Secretary’s appeal or see to the appointment of other counsel to do so.
The varieties and complexities of the State organizational structures may throw up problems in the future to which the statute might speak differently than it does here. So also there may be a special role for the courts as we get into unfamiliar terrain: for example, one can imagine cases where a court might be well advised to appoint counsel to represent a view in a public matter that neither the Governor nor the Attorney General is willing to espouse. To decide the present case satisfactorily we do not require a proposition of sweeping dimensions.
The full text of G. L. c. 12, § 3, as amended through St. 1943, c. 83, § 1, is: “The attorney general shall appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. Writs, summonses or other processes served upon such officers shall be forthwith transmitted by them to him. All legal services required by such departments, officers, commissions and commissioners of pilots for district one in matters relating to their official duties shall, except as otherwise provided, be rendered by the attorney general or under his direction.”
Even though ultimate policy is in other hands, the Attorney General, as indicated, will as a practical matter make policy in all but the most exacerbated cases.
There are particular fields, not in question here, in which it seems he is given final authority. See, e.g., G. L. c. 12, §§ 3A-3D (certain damage claims against the Commonwealth).