25 Neb. 262 | Neb. | 1888
The plaintiff alleges in his petition, “ that he is a resident tax-payer and elector of the said city; that the city of Kearney is a city of the second class, of more than 5,000 inhabitants and less than 25,000 inhabitants, duly and legally organized and proclaimed under the general laws of the state of Nebraska, for the incorporation of cities and towns within the state; that the said Lawrence Ketchum is the legally appointed, duly qualified, and acting marshal of the said city of Kearney ; that on the 29th day of November, 1886, the council of said city, in accordance with the power granted them by the legislature in such cases, regularly passed an ordinance prescribing the fire limits within said city, as follows : Commencing at the north-east corner of lot 72 in the original town of Kearney'Junction, at the intersection of Wyoming avenue with 13th street, and running thence west to the west side of the alley between lots 72 and 77 of said original town,
A copy of the fire ordinance is set out in the record.
The defendants demurred to the petition, on the ground that the facts were not sufficient to entitle the relator to the relief prayed for.
The relator fails to state that he has any interest in the
The rule is well established in this court that, where the' question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws. State v. Shropshire, 4 Neb., 411. State v. Stearns, 11 Neb., 104. This rule applies more particularly to the enforcement of such public duties which the failure to perform will affect the entire community alike, and it is doubtful if the rule applies in a case like this.
The question was before the supreme court of New York in People v. Collins, 19 Wend., 56, and Mr. Justice Cowen, in an elaborate opinion, reviews the cases to that date. He says (p. 65): “Most of the cases respect private or corporate rights. Courts or officers or corporations are to be put in motion with a view to enforce some matter of private interest. In such case the title to relief at the suit of the relator must appear, and he should present himself as a party, otherwise a mere stranger might obtain a mandamus officiously and for purposes not at all desirable to the real party. [See per Abbott, Ch. J., in Rex v. Sheriff of Chester, 1 Chitty R., 479.] In matters of mere public right, however, it is otherwise; here the people are the real party, as in the other they are the nominal.”
The distinction between cases where a private person
2d. It appears that the building complained of was removed from one point within the fire limits to another point therein, presumably for the purpose of erecting a building on the former site, to conform to the fire limit ordinance. There is no increase of the combustible material within the fire limits, of the city, and we have been unable to find any case where it has been held, under a statute like our own, that the city council might not permit such removal. And certainly a mere volunteer, who will sustain no special injury thereby, cannot complain.
The demurrer to the petition will be sustained, and the action dismissed.
Judgment accordingly.