On plaintiffs' appeal from the Supreme Court.
For the appellants, John O. Bigelow.
For the respondent, Hobart & Minard.
The opinion of the court was delivered by
PARKER, J. In a suit begun in the Supreme Court under the above title, for the enforcement of a penalty of $100 per day for default of compliance by the respondent with an order of the board touching the abolition of a grade crossing, pursuant to section 33 of the statute commonly known as the Public Utilities act (Pamph. L. 1911, ch. 195 -- at p. 387), there was a motion to strike out the answer and supplemental answer, and some forty-three defenses therein specified, which motion was heard by Judge Oliphant of the Circuit Court sitting as a Supreme Court commissioner pursuant to the act of 1926 (Pamph. L., p. 103), and rules 92 to 94 of the Supreme Court as revised in 1926. The commissioner struck out all of the defenses except paragraph 11 of the first defense, and the second, fourth, thirty-sixth and thirty-seventh defenses; but conceiving that Nos. 36 and 37 went to the root of the case and that the motion, as tantamount to a demurrer, opened the whole record, adjudged that the complaint itself should be dismissed and the summons quashed. This determination was followed by a rule entered by authority of a justice of the Supreme Court, directing the quashing
of the summons and dismissal of the complaint. This, as tantamount to a final judgment, constitutes a proper basis for review by this court. Eames v. Stiles, 31 N.J.L. 490.
So far as the second defense, and paragraph 11 of the first defense, relate to the time when the penalty began to run, they are not attacked on this appeal, as will more fully appear presently. The fourth defense, which will also be taken up more fully later on, deals with alleged inability for legal reasons to comply with the order. The real nub of the controversy, however, is in the thirty-sixth and thirty-seventh defenses which are substantially alike and raise the points that the suit should be by the state itself, and be conducted by the attorney-general, and as a corollary, that counsel for the board appointed by authority of the Utility act, section 5, is without authority to bring or conduct this suit in its behalf.
As to the first branch of the proposition, that the suit should be in the name of the state itself, as provided by section 33 of the Utility act, the record shows explicitly that the state is the party in interest, although the board may figure as a relator. See Anderson v. Myers, 77 N.J.L. 186. The precise form of language seems not material. The important question is that of control of the litigation, whether by the board and its counsel as state agents, or by the attorney-general as the usual accredited legal adviser of the state itself. On this branch of the case we conclude that the powers and privileges of the attorney-general as they existed at common law and particularly as conferred by statute, are subject to change and modification by legislative enactment; and that in the matter of the board of public utilities the legislature has conferred upon that board and upon counsel appointed by it pursuant to the statute, the power of commencing and conducting litigation in which the board in exercise of the power vested in it is seeking to enforce its mandates.
It may be stated as a broad general proposition that upon the separation of the American colonies from the crown, and the erection therein of independent governments, the common law powers and duties of attorney-general in England devolved
upon similar officials in the various states, and according to the text of 6 C.J. 809, 810, no attempt was made by state legislatures to enumerate or define them. A very instructive list of such powers and duties appears in the report of People v. Miner, 2 Lans. (N.Y.) 396, 398, which is abstracted in the footnote on 6 C.J., it is stated in the text that "subject to constitutional limitations, it is within the power of the legislature to increase, alter or abridge the powers and duties of the attorney-general." Both these general propositions are illustrated in the history of New Jersey legislation.
The index of English statutes at large under the title of "Attorney General," fails to show any legislation of consequence relating to his duties, and only three statutes are referred to under that heading. There is nothing about this title in the index to Leaming and Spicer's Grants and Concessions of New Jersey. Likewise, there is nothing under this title in the index in Allison's New Jersey Laws, published in 1776. Consequently, it may be reasonably assumed that the duties of Cortlandt Skinner, the last attorney-general of New Jersey under the crown, and the duties of William Paterson appointed in 1783, were substantially the same in their sphere as those of the attorney-general in England in his. The first constitution of New Jersey, adopted in 1776 (1 Comp. Stat., xxxi) is silent on the subject of the attorney-general except that by paragraph XII his term of office is to be five years and he is to be appointed by the council and assembly "in manner aforesaid." By paragraph XXII it is prescribed "that the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such ...