46 Neb. 84 | Neb. | 1895
The relators applied to the district court of Adams county for a writ of mandamus to compel the respondents, as members of the board of supervisors, to convene and divide the county into supervisor districts and select supervisors according to the provisions of Session Laws, 1895, chapter 28. The district court allowed the writ, and the respondents prosecute error.
The case on its merits presents the same questions as are decided in Van Horn v. State, 46 Neb., 62, and the same reasons control its decision. In this case there are, however, certain assignments of error relating to the form of the proceedings. These require separate notice. The relators in this case are themselves members of the board of supervisors. The respondents are the remaining members of the board. The prayer is for a writ compelling the respondents to convene with the relators and act. This, is also the form of both alternative and peremptory writs. It is contended that in such a case the proper respondent is the corporation as such. In other words, that the writ should run not against individuals composing the board of supervisors) but against the board of supervisors by that name. In State v. Home Street R. Co., 43 Neb., 830, it was said: “ Where the act is a duty incumbent on a corporation, the writ may, according to circumstances, be directed to the corporation itself, to the select body of officers whose duty it is to perform the act, or to the corporation and that body jointly.” An examination of the eases convinces us that according to the great weight of modern
It is contended, also, that the relators, being members of the board, have no legal capacity to sue. The duty which it is sought to enforce is a public duty, and the question is one of public right. Therefore, any citizen may maintain the action. (Stale v. Shropshire, 4 Neb., 411; State v. Stearns, 11 Neb., 104; State v. City of Kearney, 25 Neb., 262.) No citizen can more appropriately bring the action than a member of the board, upon whom the duty is imposed, and whose efforts to perform it are thwarted by the recalcitrant majority of the board. It is suggested that there.is a defect of parties defendant, because all the members of the board are not made defendants. It is the rule that in such cases all the officers upon whom the duty is Imposed are necessary respondents. (Lyon v. Rice, 41 Conn., 245; Knight v. Ferris, 6 Houst. [Del.], 283; State v. Jones, 1 Ired. [N. Car.], 129.) In a ease like the present it has been held proper for the relator, being a member of the board, to make himself also a respondent (Cooper v. Nelson, 38 Ia., 440), but we think that the correct view, especially under the reformed procedure, is that taken in State v. Jones, supra, holding that while the writ must be ■directed to all the members, still, where a portion of the members accept service and assent to the performance of the act, a writ directed against the remaining members is sufficient, as all have been thus brought before the court and are subject to penalty for contempt. Here all the members of the board are before the court. The relators asking for the writ here are as much bound by the record as the respondents. The writ requires the respondents to meet with the relators, and there can be no doubt that upon this record ■the writ may be enforced against every member of the board, whether relator or respondent.
Judgment affirmed.