Collins v. Ripley

8 Iowa 129 | Iowa | 1859

"Woodward, J".

-The error assigned is the sustaining the motion to dissolve the injunction, “ for the reasons set forth in said motion and we will limit ourselves tojliese reasons.

When the defendant says that the petitioner is not entitled to become relator, we presume he means petitioner, for it is only the position of a complainant in a bill in equity, praying an injunction, that Collins assumes, and not that of relator in an information for a mandamus or for a quo warranto.

We do not readily see the force of the reasoning assigned in the motion. Collins complains in behalf of himself and others, as it is understood, though imperfectly stated, whom he represents to be citizens and residents of St. Charles, the present county seat; and avers that they are directly and materially interested in the retention of it at that place. ITis position as a citizen, and his interest as such in the public welfare, entitle him to present a petition to restrain a public officer from an act which Avonld be a public wrong. There is some analogy between this, and the case of a relator applying for a mandamus in a public matter, and it has been held that one holding such relations, might present an information for that purpose. See The State, ex rel. Rice v. The Co. Judge of Marshall Co., 7 Iowa, 186; and The State, ex rel. Byers v. Bailey, County Judge, et al., 7 Ib., 390. The doctrine held in those cases, is sufficient to sustain the position of the petitioner in this case.

And the other objection does not appear to have more force than the above. The district judge ordered the bond to be given to the county judge, and it is so given to him in his official capacity. The Code, (section 1693), provides, that when a bond is given to the state, a county, or any officer, whether intended for the security of the public or individuals, suit may be brought thereon by any person intended to be thus secured. And section 2506 enacts, that bonds relating to public matters, and concerning the inhabitants of a county; may be made payable to the county; and if concerning the inhabitants of more than one county, may be made payable to the state. But a mistake in these respects will not vitiate the security. Here the words “ in these respects,” refer to the person or body to whom the bond is made payable, so that the security in the present instance, running to the county judge, is the same as if made to the county, and can be sued upon by it. There is, then, no want of a party obligee, nor of a person competent to sue, and the objection fails.

Therefore, the order of the district court is reversed, and the cause remanded.