78 P. 367 | Ariz. | 1904
Lead Opinion
An application has been made to this court by the plaintiff for a peremptory writ of mandamus to compel the defendant to institute quo warranto proceedings against C. H. McClure et al., who, it is claimed, are usurping and unlawfully exercising a certain franchise. There is an answer by the defendant setting up several defenses, and also a replication thereto by the plaintiff. The court is of the opinion that the plaintiff’s demurrer to the defendant’s plea in abatement is well taken, and therefore sustains the same.
Upon the question of the sufficiency of the petition, raised by the defendant’s demurrer, a majority of the court is of the opinion that the facts stated are insufficient in law to entitle the plaintiff to the writ prayed for. Since it is only mandatory upon the district attorney to institute such an action “when he has reason to believe that ah office or franchise is being usurped, intruded into, or unlawfully held or exercised,” facts must be alleged to clearly show that his refusal has been an arbitrary act, and not a mistake of judgment. It is not enough to allege that certain facts were presented to the district attorney by the plaintiff in connection with the request to institute the proceedings, because the official may have derived knowledge, from investigation, which would amply justify a refusal to act. It should be alleged or made to affirmatively appear in the complaint that, from all
The demurrer to the petition in its present form will be sustained with leave to plaintiff to amend within twenty days.
Dissenting Opinion
I dissent. I think the petition is sufficient, and that the demurrer of the defendant should be overruled.