| Ill. | Dec 15, 1849
It is contended that the relator has not such an interest in the fund sought to be recovered, as will authorize him to prosecute this peculiar remedy. The question, who shall be the relator, in an application for a mandamus, depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced, must become the relator. He is considered as the real party, and his right to the relief demanded must clearly appear. A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the People are regarded as the real party, and the relator need not show that he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed, and the right in question enforced. See the case of The People vs. Collins, 19 Wend., 56" date_filed="1837-10-15" court="N.Y. Sup. Ct." case_name="People ex rel. Case v. Collins">19 Wendell, 56, where this question is much discussed, and the foregoing conclusions are clearly stated. No doubt is entertained of the right of Metz to become the relator, and pursue this remedy. The object of the suit is not a matter of individual interest, but of public concern. Any citizen of the county, especially of the locality interested in having the improvement prosecuted, could become the relator, and obtain the mandamus. There is a manifest propriety in permitting Metz to give the information, and conduct the proceeding. He has the direction of the improvement, and the money, when received, is to pass into his hands, and be disbursed by him.
It is insisted that the act of the 28th of February, 1845, repealed the act of the 9th of February, 1839, and vested the county commissioners with full discretion over the fund in controversy ; and this presents the main question in the case. The act of the 27th of February, 1837, gave the fund to the county, to be expended in the construction of such public works, within its limits, as the county commissioners, in their discretion, might direct. Before this discretion was exercised, and before the money was received from the state, the Legislature, by the act of the 9th of February, 1839, withdrew the fund from the discretion and control of the county commissioners, and required it to be expended in the construction of certain designated improvements, and under the direction of certain persons named in the act. The money was required to remain in the bank, to the credit of the county, but was only to be drawn out by the county commissioners, from time to time, as it should be needed for the prosecution of the improvements, and paid over to the persons having the superintendence thereof. The fund was appropriated to certain specified purposes, over which the county commissioners were to have no other control than to receive the money, and pay it out in the manner prescribed by the act; and in doing that, they were to act merely as the trustees of the state, and of those beneficially interested in the proper expenditure of the money. The improvements were to be constructed under the authority of the state, and not in pursuance of any directions of the county commissioners. From the passage of the act, the fund ceased to be the property of the county, and subject to the control of the county commissioners. It was recalled by the state, and another and different disposition made of it. It became another fund, devoted to specific objects, and to be expended under different authority, and by different agents. In the opinion of the Court, the act of 1845 was not intended to repeal, or in any manner affect the act of 1839; but was only designed to apply to counties that had actually received their portion of the fund falling due them, under the provisions of the internal improvement act; and which, instead of expending it as directed by that act, had loaned it out on interest; or, in other words, the act only embraced cases where the fund still belonged to the county, and was subject to its disposition and control. ■The act legalized the acts of the county commissioners, in such cases, in loaning the money, instead of applying it as originally designed; and empowered them to call it in, under certain restrictions, and then to make such application of it as they, in their judgment, might deem best for the interests of the county. It was confined in its operation to moneys that had gone into the possession of a county, in pursuance of the internal improvement law; and did not extend to moneys that might pass into the hands of the county commissioners, as mere trustees, for the purpose of being paid over to the agents of the state. This was the entire scope and design of the act. Its object was two-fold; first, to legalize the loaning of the fund which a county had obtained from the state; and, second, to vest the county commissioners with a larger discretion over it when collected. In the case of Pike county, there was nothing on which the act could operate. It never, in point of fact, received the fund that fell due it by the act of 1837. Before the money was obtcined, the power to receive it was recalled, and the fund was diverted by the state. There was no such fund belonging to the county; no portion of which could have been loaned. There were no loans to be legalized; no further discretion to be conferred on the county commissioners. The proviso in the fourth section of the act of 1845, was probably designed to apply to the fund which the county of Bond received under the internal improvement law. By a special act, passed on the 12th of February, 1839, that county was expressly authorized to loan the fund, and expend the income on the objects for which the appropriation was made. By an act of the 21st of February, 1843, this fund was added to the school fund of the county, and the county commissioners were required to pay over to the school commissioner, the amount of the same in money, or “ good solvent notes, well secured.” In complying with these directions, it is highly probable, that many of the notes given for indebtedness to the fund, were transferred to the school commissioner, and were, in fact, unpaid on the passage of the act of 1845. Under the general language of the act, the debtors might demand a renewal of these securities, at the reduced rate of interest; and the proviso was inserted to avoid such consequences.
The Circuit Court properly required the county commissioners to draw a general warrant on the treasurer, for the payment of the sum in dispute. The money drawn from the bank had been mingled with the funds of the county, and could not be restored in kind. The course adopted was the only way in which payment could be enforced.
The relator was entitled to his costs. The judgment for costs is not against the county, but against the commissioners personally. By the express provisions of the statute, the successful party in the proceeding for a mandamus recovers costs in all cases.
The judgment of the Circuit Court must be affirmed, with costs.
Judgment affirmed.