| Colo. | Apr 15, 1889
delivered the opinion of the court.
It is averred in the complaint that the district attorney of the proper district refused to bring the suit upon application, and therefore plaintiff claims the right to maintain the action as relator by virtue of the provisions of section 315 of the Civil Code, although it does not appear that he has any other or different interest in the result than such as he may have in common with all other citizens of the state. If the defendant corporation has violated the law, either by doing some forbidden act or by neglecting to do some act enjoined upon it, it is not every person who may call it to account for such violation. As a general rule, prosecutions for wrongs done to the public must be instituted by the state through its properly authorized agents, while the individual can only sue for injuries peculiarly affecting him; and the provision of the code permitting an action in the nature of a quo warranto to be brought by a purely private party, upon the neglect or refusal of the district attorney to bring such action, must be construed with reference to this general rule. In considering the nature of the interest necessary to entitle a private party to become a
The language quoted was used in reference to the statute of 9 Anne, chapter 20, relating to informations in the nature of a quo warranto, under which it was expressly provided that the information might be exhibited by the proper officer “at the relation of- any person or persons desiring to suo or prosecute the same. ” See appendix to High, Extr. Rem. 585. The same view is taken in Pennsylvania under a statute containing a similar provision in reference to the relator as that quoted from the English statute. In Com. v. Railway Co. 20 Pa. St. 518, the court said: “A stranger who has no interest in a corporation except that which is common to every citizen cannot demand a judgment of ouster in a writ of quo warranto. * * * No mere stranger should be permitted to demand the forfeiture of a charter granted by the commonwealth where the state herself does not demand it. She has a right to waive the forfeiture; and it is her interest, in many cases, to do so.”
It will be noted that the provision in reference to the person who may act as relator is as broad in the English statute as in our own. In fact, the statute of this and other states relating to actions for the usurpation of an office or franchise are generally modifications of this statute of Anne, and the universal rule of decisions in all cases in which the action has been brought for the
It was said in the-oral argument that Frank S. Byers, the relator, is the owner of one of the banks upon which the bridge rests, and that the defendant had appropriated the same without compensating him therefor, and that this ownership entitles the said Byers to prosecute the action as relator. There are two conclusive answers to this argument: First. It does not sufficiently appear from the complaint that he is such owner. Second. If it did so appear, and also that the defendants took possession of said bank unlawfully, they would under such circumstances be trespassers, and liable in damages for the injury. The public, however, would be in no way concerned with the controversy; and, as we have seen, this is a sufficient reason for denying the extraordinary remedy by quo warranto. People v. Turnpike Co. 2 Johns. 190" court="N.Y. Sup. Ct." date_filed="1807-02-15" href="https://app.midpage.ai/document/people-ex-rel-macey-v-hillsdale-5472061?utm_source=webapp" opinion_id="5472061">2 Johns. 190.
The complaint failing to show any interest in the controversy in Frank S. Byers, the relator, other than such as pertains to every citizen, the trial court properly sustained the demurrer, and the judgment is according affirmed.
Affirmed.