Case Details


Common Law Powers

Filing State



U.S. Court of Appeals for the Fifth Circuit




Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir. 1976), reh. den. 529 F.2d 523 (5th Cir. Fla. 1976), cert. den., Standard Oil Co. v. Florida, 429 U.S. 829 (1976)


The Florida attorney general brought an antitrust enforcement action in federal court against many major oil companies. The defendants challenged the attorney general’s authority under Florida law to bring the action on behalf of state departments, agencies, and political subdivisions without the express consent of those public bodies. The appeals court flatly rejected that challenge. The court concluded that, in light of the common law, the issue of the attorney general’s authority “simply is not an extremely close question.”

Case Description

The court addressed the issue whether the Florida attorney general’s action was authorized by Florida law. On this point, the court concluded that the attorney general retained his common law powers. The court found it significant that the Florida statute enumerating the attorney general’s powers did not purport to be comprehensive and, in fact, provided that “the attorney general shall * * * have and perform all powers and duties incident or usual to such office.” The court said, “The Attorney-General is the attorney and legal guardian of the people, or of the crown, according to the form of government. His duties pertain to the Executive Department of the State, and it is his duty to use means most effectual to the enforcement of the laws, and the protection of the people, whenever directed by the proper authority, or when occasion arises. * * * Our legislature has not seen fit to make any change in the common law rule. The office of the Attorney-General is a public trust. It is a legal presumption that he will do his duty, that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is in its nature a judicial act, from which there is no appeal, and over which the courts have not control. After concluding that the Florida attorney general has common law powers, the federal appeals court ruled that those powers included the initiation of an antitrust action on behalf of state instrumentalities in federal court because the attorney general’s common law power undoubtedly included the authority to initiate a suit and that the attorney general had common law authorization to prosecute actions to protect and defend state property and revenue. The court confirmed that the attorney general was empowered by common law to institute litigation on his own initiative if he determined that the public interest so required.