United States ex rel. Alsop Process Co. v. Wilson

33 App. D.C. 472 | D.C. Cir. | 1909

Mr. Justiee Robb

delivered the opinion of the Court :

The first question to be disposed of is whether the interest of the relator in the subject-matter involved is of such a nature as to entitle it to maintain this proceeding. The decision of the Secretary of Agriculture, which is here sought to be challenged, is to the effect that flour bleached by nitrogen peroxide is an adulterated product under said food and drugs act. Neither the relator nor its process is mentioned in this decision. The relat- or is neither the owner nor the manufacturer of bleached flour. Its sole excuse for attempting to stay the hand of the Secretary is that, since the promulgation of this decision by the Secretary, it has been unable to sell its patented process and apparatus, owing to the fear of prospective purchasers that, upon the recommendation of the Secretary, they will be prosecuted for manufacturing or selling an adulterated food product.

Whilst it is true that there is a uistinction between cases where the extraordinary aid of mandamus is invoked merely for the purpose of enforcing or protecting a private right and cases where the purpose of the application is the enforcement of a purely public right, the peojfie at large being the real party in interest (High, Extr. Legal Rem. Par. 430; 26 Cyc. Law & Proc. p. 404 and cases there cited), it has never been held, at least, to our knowledge, that such an indirect and collateral interest as is here shown will sustain a petition for the writ.

Union P. R. Co. v. Hall, 91 U. S. 343, 23 L. ed. 428, and Board of Liquidation v. McComb, 92 U. S. 531, 23 L. ed. 623, in our opinion, do not sustain appellant’s contention that it has a sufficient interest to entitle it to institute this proceeding. In the former case it was held that merchants in Iowa having frequent occasion to receive and ship goods over the Union Pacific R. R. Co. might, without the intervention of the Attorney General of the United States, institute a proceeding under an act of Congress which conferred upon the proper circuit court of the United States jurisdiction to hear and determine all cases of mandamus to. compel said railroad company to operate its road as required by law. It will thus be seen that a duty was laid upon the railroad company to operate its road in the interests of the public. Its failure in that regard wrought a direct injury to the merchants who were permitted to institute the proceeding. The court went no further than to hold that the writ of mandamus may be issued at the instance of a private relator in all cases “where the defendant owes a duty, in the performance of which the prosecutor has a peculiar interest,” and also “in case of applications to compel the performance of duties to the public by corporations.” In the latter case, the relator was the holder of bonds directly affected by the funding act, the carrying out of which he sought to have restrained.

We have carefully examined the other cases cited by relator on this point, and find that they go no further than the cases above reviewed.

The relator, as a corporate entity, has no interest in the enforcement of duties owing by the Secretary to the public. It seeks to arrest the operations of an executive Department of the government solely because the indirect effect of the promulgation of an opinion by the head of that Department has been to cause millers to cease purchasing relator’s machinery. In all the cases relied upon by relator, mandamus Avas granted to secure to the relators rights which they were entitled personally to enjoy. Measured by this test, it is apparent that the relator has no such interest in the subject-matter of this controversy as to entitle it to the writ. Being neither an OAvner nor a manufacturer of bleached flour, its legal rights were not involved or invaded by the action of the Secretary. It is a mere volunteer in this proceeding, and, as such, is without standing.

. There is some analogy between a suit in equity for the abatement of a public nuisance and the present case. Yet it is well settled that such a suit will not be sustained unless the complainant shows special, direct, and material damages. Georgetown v. Alexandria Canal Co. 12 Pet. 91, 9 L. ed. 1012; Irwin v. Dixon, 9 How. 10, 13 L. ed. 25; Pennsylvania v. Wheeling & B. Bridge Co. 13 How. 518, 14 L. ed. 249; Mississippi & M. R. Co. v. Ward, 2 Black, 485, 17 L. ed. 311. In the case last cited it was said: “A bill in equity to abate a public nuisance, filed by one wbo bas sustained special damages, bas succeeded to tbe former mode in England of an information in chancery, prosecuted on bebalf of tbe Crown, to abate or enjoin tbe nuisance as a preventive remedy. Tbe private party sues ratber as a public prosecutor than on bis own account; and unless be shows that be bas sustained, and is still sustaining, individual damage, be cannot be beard.”

Tbe rule permitting private pai'ties whose rights are directly jeopardized to maintain mandamus to compel a public duty is a salutary one, but it should not be enlarged to such an extent as to permit interference with tbe operations of tbe government by those whose rights are only remotely and indirectly affected.

Having determined that tbe relator’s interest in tbe subject-matter involved is too remote to entitle it to institute this proceeding, it becomes unnecessary to consider any other question.

Tbe order is, therefore, affirmed, with costs. Affirmed.