#### Territory ex rel. Graves v. Cole, et al.

1, ■ mandamus: relator: who may be: non-resident of county. Under ar> act of the Legislature submitting the question of a division of Custer county to the legal voters residing within the proposed boundaries of the new county of Fall River, upon an application by a relator, who was a resident of Lawrence county, for a writ of mandamus to compel the canvassing board to recanvass the vote cast at such election: Held, That such relator was not “ beneficially interested,” even though owning property in the proposed new county, and was not the proper party to apply for the writ.

*2.*same: public officer must apply for writ, when: when private citizen may be relator. When public rights are to be subserved public officers must apply for -the writ. But if a private individual make himself relator he must show some particular right or privilege of his own, independently of that which he holds with the public at large as a citizen.

*Appeal from, the District Cowrt of Ouster Oounty.*

The facts are stated in the opinion.

*G. C.*Moody, for defendants and appellants.

Points and authorities in brief:

"Without showing some property interests which are injuriously affected by a failure of the public officer to act, the citizen of. one county cannot interfere in the public affairs of another county in which he has no residence or citizenship. No more than could a non-resident of a state be a relator to compel a public officer of such state to act without showing some peculiar interest: High’s Ex. Legal Rem’s, Secs. 33, 436, 449, 521; *State v. Corns. School Fund,*4 Kansas, 261; *State v. Oovm,ty Judge of Dmis Go., 2*Iowa, 280; *Bi/nden v. Board of Supervisors of ALmada Go.,*45 Gal., 6; *Woods v. Bangs,*1 Dak., 179; *Bahbett v. State,*10 Kan., 9-16; *Hefner v. Com.,*28 Pa. St., 108; *People v. Begents,**3014 Mich., 98; *People v. Green,*29 Mich., 121; *Sanger v. Ooms.,*25 Maine, 291; *Chicago v. Building Asso.,*102 111., 379.

The defendants met, acted as canvassers and adjourned. This dissolved the board, and ended its functions. Such a board under our law is not a continuous one, but may be formed by the clerk in several ways, in his discretion: Revised Codes, Chap. 27, See. 31.

Again, the time in which the board was authorized to act under the law relating thereto expired long before any demand was made upon them to act or any proceedings instituted: *State v. Bod-man,*43 Mo., 256; *People v. Supervisors, ete.,*12 Barb., 217, approved in 4 Abb., 85; 15 Barb., 618; 23 Barb., 348; 24 Barb., 167; 29 Barb., 99; 45 Barb., 458; 46 Barb., 261; 30 N. Y.,472.

The act creating the new county of Fall River, i-ubmitting the question of the existence of the *law*to the voters of Fall River county, was void as a delegation of power: *State v. Young,*29 Minn., 474, 550; *State v. Com. Pleas Morris Co.,*36 N. J., 72, and cases there cited; S. C. 13 Am. Rep., 422; *State v. Htidson,*37 N. J., 12; *Barto v. Hirwrod,*8 N. Y., 483; *Santo v. State,*2 Iowa, 203, etc., *Geebrick v. State,*5 Iowa, 491; *State v. Be-nehe,*9 Iowa, 203; *State v. Weir,*33 Iowa,,134; *Thorne v. Cra-mer,*15 Barb., 112, 122; *People v. Stout,*23 Barb., 349; *Ex-parte Wall,*48 Cal., 279; *Brown v. Fleschner,*4 Oregon, 132; *State-v. Wilcox,*42 Conn., 364, S. C., 19 Am. Rep., 536; *Parl&er v. Corns.,*6 Barr, 507; *Bice v. Foster,*4 Har., (Del.) 479; *State v. Flwood,*11 Wis., 19; *State v. Field,*17 Mo., 529; *State v.Wilcox,*45 Mo., 458.

*Granville G. Bennett,*for respondent.

Where the question is one of public right, and the object of the mandamus is to procure the enforcement of a public duty, as' this *302unquestionably is, tlie people are regarded as the real party, and 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 is interested in the execution of the laws: High’s Ex. Legal Item’s, p. 204, Sec. 441, and note; *County of Pike v. The*State, 11 111., 202; *City of Ottawa v. The People,*48 111., 233; *Hamilton v. The State,*3 Ind., 452; *People v. Collins,*19 Wend., 56; *People v. Halsey,*37 N. Y., 344; *State v. County Judge,*7 Iowa, 186. If he is a citizen of the territory it is sufficient: *Hamilton ■v. The State, supra.*To the same import is the English rule: High’s Ex. Legal Bern’s, 308, and note.

In the case of the *People v. Halsey,*supra, the Court uses the .following language: “ Inasmuch as the people themselves are the “ plaintiffs in a proceeding by mandamus, it is not of vital import- “ anee who the relator should be, so long as he docs not officiously ££ interfere in a matter with which he has no concern. The rule, *u*therefore, as it is sometimes stated, that a relator in a writ of “ mandamus must show an individual right to the thing asked, “ must be taken to apply to cases where an individual interest is alone involved, and not to eases where the interest is in common ■<£ to the whole community.”

As to the invalidity of the act creating the new county of Fall ' Biver, much stress was laid by counsel on the case of *Barto v. Ilimrod,*8 N. Y., 483. This was the case of an enactment by ' the legislature establishing a public school system for the state, • and its validity as a law depended on the vote of the people of the ■entire state. It was for that reason held unconstitutional. It may not be out of place to remark that this was, as it seems, before the State of New York had any public schools, and that may ¡account for the court distrusting the people. Since then a little liglit in this regard has dawned on the judiciary of that state, and *303on examination it will be found that its courts have not shown any disposition to extend the doctrine of that case to local and special statutes, which relate to local government and -matters of municipal concern: *Bank of Home v. Village of Borne,*18 N.Y., 38; *Starim v. Town of Geneva,*23 N.T., 439; *Gould v. Town of Sterling,*23 N.T., 456; *Clark v. City of Boohester,*28 N. Y., 605.

The same doctrine is held in numerous other cases, and notably the following: *State v. Parker,*26 Yt., 357; *in re. Bichcvrd Oliver,*17 Wis., 681; *Smith v. Janesville,*26 Wis., 291.

In the case of *State, ex rel. Attorney General v. O'Beil,*24 Wis., 149, the statute under consideration contained the following provision: “This act shall be void, unless the legal voters of the city of Milwaukee, at an annual election, * * * by vote determine to accept the same.” A majority of the votes were in favor of the law, and it was held valid. The opinion in this case is able and exhaustive.

To the same effect are the decisions of the Supreme Courts of Iowa and California: *People v. Bailey,*49 Cal., 479; *TJpham v. Supervisors,*8 Cal., 379; *Santo v. The State,*2 la., 165; *Mor-ford v. Unger,*8 la., 82; *State v. Beneke,*9 la., 203.

In Missouri the question whether a general school law be accepted in a particular municipality was referred to its voters, and the law authorizing such reference sustained: *State v. Wilcox,*55 Mo., 458; Eesponse to House Eesolution, 55 Mo., 295.

The Supreme Court of Illinois holds the same doctrine: *State v. Beynolcls,*10 111., 1; *Erli/nger v. Boneau,*51 111., 94. Also the State of Mississippi: *Pike County v. Barnes,*51 Miss., 305. On same point and to same effect, see: *Brunswick v. Finney,*54 Ga., 317; *Commonwealth v. Judges, etc.,*8 Pa. St., 391; *Call v. Cladboiom,*46 Me., 206.

*304Edgerton, C. J.

An act was passed by the last legislature to divide Ouster county and to create a new county to be called Fall River, “ provided that before this act shall take effect and be in force the matter of the establishment of the proposed county of Fall River shall first be submitted to a vote of the legal voters residing within the territory embraced within the proposed county * * An election was held as provided for in such act, and the county clerk of Ouster county, for the purposes of a board of canvassers, called to his assistance two members of the board of county commissioners of said county, and they as such board of canvassers proceeded to canvass the votes cast at such election upon the question of the establishment of the proposed county of Fall River, and declared the result. Thereafter Leonard R. Graves, a resident of Lawrence county, but a tax payer of Custer county, commenced this proceeding as relator to compel the said county clerk, and the county commissioners called to his assistance as a board of canvassers, to reconvene, and recanvass the said vote, claiming that certain votes had been illegally counted in the prior canvass. Whereupon an alternative writ of mandamus was issued. To this writ the defendants demurred and also moved to quash. The writ was held insufficient and defective, and leave given to relator •to amend. To the amended alternative writ the defendants again moved to quash and also demurred, upon the ground that neither the said writ nor the said petition therefor state facts sufficient to authorize the issuance thereof or the peremptory mandamus prayed for. Second, because it does not appear that the relator is a party beneficially interested. *Third,*because the pretended act of the Legislative Assembly, upon which the proceedings are based, is invalid and void. Which motion and demurrer were overruled and defendants elected to stand thereon, refusing to make other or farther answer. Judgment was had for a peremptory writ, from which defendants appeal, assigning three errors:

> *305“ *First.*— The relator is not a party ‘ beneficially interested,’ “ and cannot maintain this proceeding as relator.

> “ *Second.*— -The defendants having met and acted as canvassers “ and adjourned the board was dissolved and its functions ended.

> “ *Third.*— That the act under which it is attempted to create “ the county of Fall River is null and void.”

The relator was not and is not a resident of Ouster county, but resided in Lawrence county. It is contended that he was the owner of property within the limits of the proposed new county of Fall River, and as such “ interested.” Did this make the relator the proper party to apply for the writ — was he u beneficially interested?” We think not.

To use the language of Judge Woodward: “ In order to obtain “ a writ of mandamus the applicant must have a right to enforce “ which is specific, complete and legal, and for which there is no “ other specific legal remedy. When public rights are to be sub- “ served, public officers must apply for the writ; but if a private “ individual make himself relator, he must show some particular “ right or privilege of his own, independently of that which he “ holds with the public at large:” 28 Pa. St., 108; see also *Babbett v.*State, 10 Kan., 15; *People v. Green,*29 Mich., 121; High Ex. Legal Rem., Sec. 436.

It is contended by the respondent that the relator being a citizen was the proper party. The relator was a citizen of Lawrence county but not of the proposed county of Fall River nor of the county of Custer.

The judgment of the District Court must be reversed, and the case

Remanded.

All the Justices concurring.