Bobbett v. State, 10 Kan. 9

Bobbett v. State

10 Kan. 9 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

Counsel for plaintiffs in error have abandoned all the points but one in this case, and upon that rest their claim for a reversal of the judgment of the district court. Defendants in error applied for a mandamus to compel plaintiffs in error, who constitute the board of county commissioners of Ottawa county, to submit to a vote of the people the question of relocating the county-seat. They allege themselves to be “legal electors, tax-payers, and the lawful owners of lands and tenements in the town of Lindsay,”' a place other than the present county-seat. Docs this show such an interest as entitles them to the mandamus? This is the only question presented for our consideration. When mandamus is sought to enforce some matter of private interest, the relator must show such interest in himself. A stranger may not interfere when the party beneficially interested is himself silent. Upon this there is no controversy. But where the proceedings are for the enforcement of a duty, affecting not a private but a public right, one common to the whole community, there is great conflict of authority as to who may apply for the writ, and what interest must appear in the relator. In Sanger v. County Comm’rs, 25 Maine, 291, Tenney, J., says: “A private individual can apply for this remedy only ,in those cases where he has some private or particular interest to be subserved, or some particular right to be preserved or protected by the aid of this process, independent of that which he holds in common with the public at large; and it is for the public officers exclusively to apply when public rights are to be ¡subserved. Supporting this view are the cases of Bates v. Plymouth, 14 Gray, 163; People v. Regents of the University, 4 Mich., 98; People v. Inspectors of State Prison, 4 Mich., 187; Heffner v. The *14Commonwealth, 28 Penn St., 108. On the other hand, in Hamilton, Auditor, v. The State, 3 Ind., 452, the court uses this language: “That the defendant should discharge correctly the duties of his office, was a matter in which Bates, as a citizen of the county, had a general interest; and that interest was of itself sufficient to enable him to obtain the mandamus in question, and have his name inserted as the relator.” And sustaining this are the following: The People v. Collins, 19 Wend., 56; County of Pike v. The State, 11 Ill., 202; State v. County Judge, 7 Iowa, 186; State v. Bailey, id., 390; Moses on Mandamus, 197.

It is evident from these citations that a decision either way would be well supported by authority. Here the relators show no interest differing in kind or degree from that of the community in general. They simply allege that they are voters, pay taxes, and own property. That this gives them no specific, peculiar, interest in the question is well shown by the opinion in the case of Craft v. Comm’rs Jackson County, 5 Kas., 518. That the duty sought to be enforced is a public duty, one affecting the whole community, is also clear. The question is therefore narrowed down to this: Can .a private citizen by mandamus compel the performance of a public duty? To allow any citizen to litigate with public officers the propriety of their acts, exposes them to constant litigation. If one may, so may another. If one act .may be litigated, so may all; and so the time, attention and thought of the officer diverted from the duties of his office to the defense of harassing suits. This topic is pursued at length in the case of Craft v. The Comm’rs of Jackson County, just cited, and needs no further discussion here.

Again, mandamus, like other' proceedings under our code,, should be brought in the name of the party interested. The State ex rel. Wells v. Marston, 6 Kas., 532. Where a public duty is neglected, the public, the community as a whole, is the party interested. Where a wrong is done to a corporation, not a stockholder, an individual member, but the corporation itself appears as plaintiff, and pursues the remedy. *15Where the law of the state is broken by the commission of a crime, the state prosecutes, not the individual. It is not “John Doe against John Smith,” (charge, murder,) but “The State of Kansas against John Smith.” Not only is the state the nominal plaintiff, but public officers, and not private citizens, conduct the prosecution. So, where a public duty is neglected, the party wronged, the public, should be the complainant, and her officers should conduct the suit. The great business of the public is carried on by agents, officers whom the people select; and if the public suffers wrong, it is the duty of those agents to see that such wrong is righted. The county attorney and attorney general are the officers specially charged with the duty of representing the public in all litigation. Gen. Stat., ch. 25, §136, p. 284; ch. 102, §64, p. 986. They can use the name of the county, or state, to pursue any remedy. If they decline to institute proceedings, when proceedings ought to be instituted, the courts may perhaps on a proper showing compel them to proceed, or permit others to use the name of the state, so that justice may not fail. Here there is no suggestion of any unwillingness of either the county attorney or the attorney general to take any legal measures deemed necessary to enforce the performance of the alleged neglected duty.

But the statute authorizes the issue of the writ “ on the information of the party beneficially interested.” Civil Code, §689. This evidently refers to- an interest peculiar and specific, and not one common and general. All citizens are in a certain sense interested in the proper discharge of their duties by public officers, but it is not such an interest as will enable each citizen to describe himself as “the party beneficially interested.” The party beneficially interested in the discharge of a purely public duty, is the public. These considerations all point to the conclusion that a private citizen may not invoke the aid of mandamus to compel the performance of a purely public duty, as was well said by Woodward, J., in the case from 28 Penn. St., heretofore cited: “ In order to obtain a writ of mandamus, the applicant must have a *16right to enforce which is specific, complete, and legal, and for which there is no other specific legal remedy. When public rights are to be subserved, public officers must apply for the writ. But if a private individual make himself the relator, he must show some particular right or privilege of his own, independently of that which he1 holds with the public at large.”

The judgment of the district court must be reversed and the case remanded.

All the Justices concurring.