, 1891-11-17
DOES NOT AGREE.
Dissenting Opinion Of the Agri-
cultural College Case.
Judge aoyt Holds That "a Tax-Pay-
er May Maintain an Action
Against the State.
[Continued from Saturday ]

/ am unable to agree with the conelu
sions of the majority of the court in thi
case If is conceded that a tax payer o
a county, simply as SUCH has right tt
appeal to the courts to prevent such actor
by county officials as will lead to the il
legal disposition of the property or funds
of the county, (and such | understand tC
be the position of the majority Of the
court), can see no reason why a tax payer
of a state, as sueh cannot invoke the aid
of the courts to prevent like illegal action
on the part of state officers. 1t is true he
is one degree farther removed from the
threatened in ury, but / cannot see that
such fact can affect the principle involved
The tax payer of the county may apply fo1
relief, not because he is to be affected by
the proposed illegal action in different
manner from every other tax payer in the
county, but simply because, as such tax
payer, he is SO interested in the property OF
funds of the county that he may ask the
court to protect the same from illegal dis
position. The tax payer of the state bears
exactly the same relation, excepting in de-
gree, to the property or funds of the state
as does the tax payer ofthe county to its
fluids or property, and to hold that in one
case the courts are open to the tax payer,
and in the other not. seems to be incon-
sistent and contrary to the course of courts
in dealing with matters of this kind. It is
the pecuniary interest of the tax payer that
gives him the right to appeal to the
courts, and not the grade or character Of
the officer whose illegal action he seeks to
prevent. The amount of such pecuniary
interest has never been held material for
the complaint if sustained at all has al
ways been so sustained regardless of the
amount of taxes which that particular tax
payer might be called upon to pay. 1t
has never been held necessary to aIlege
that complainant was a large tax payer
Hence it cannt be said that the pecuniary
interest OF the taxpayer of the state is, by
reason OF his remoteness, too small to
qualify him as complainant Besides
IT the amounnt Of the injury was to be
taken into account it might well happen
that the individual interest of a particular
tax payer might be more largely affected
by the action of the officers of the state
than they could by almost anv act that
could be done by the officers of county.
But it is said that the state is sovereign.
and that from this fact distinction can be
~draWn. 1t is true the state is sovereign.
But what is it that makes up such soyer-
eIgnty? The people of the state. And I
cannot concede that there is an artificial
something that is over and above the whole
bpeople OF the state as such. Every citizen
as acOnstltuent part of such sovereignty is
equally interested that the agents thereof
DO their duty, and were it not for the
fact that, as a general rule, courts only
deal with pecunlary rights, l see no reason
why any citizen could not put in motion
Inc judicial department of the state to pre-
vent illegal action on the part of its off
GERS But as such is the fact only tax
payers can make such appeal. And if he
can thus appeal as tax payer of county
see nothing growing out of his relation
10 the state to prevent like appeal to pro-
tect his interests as tax payer thereof.
Ihe majority of the court seem to have
realized the force of considerations like
these, and to meet them have suggested all
sorts of probable or possible evils which
might result if the individual tax payer Of
the state was allowed thus to interfere with
the proposed action of its officers, There
would be much force in the suggestions Of
the majority i'll this regard were it within
the power OF such tax payer, of his own
motion, to so interrupt the business of the
= sGate' Tor then an evil disposed person
might causelessly SO interfere, but when it
IS remembered that all such tax payers can
90 Is to go into court of competent iuris-
dlctlon, ahd state the facts upon which he
Sfelles for relief, and take the Judgment Of
Ssaeh court thereon before anything can be
cone TO affect the action of the state, the
danger is more fanciful than real.
II courts can be trusted to inter
tere with the action of county of.
hcers IN proper case I see no danger in
their being likewise trusted in regard to
the officers Of the state. If it is necessary
that the funds and property of the county
should be guarded, not only by the prose-
cutting attorney thereof, but also by every
tax-payertherein, the same reasons will re-
qnlre that the property and funds of the
state should be likewise guarded. not only
by the encouragement, but also by every
taxpayer, and this is especially so as the
auty OF the prosecuting attorney to protect
the property and interests of the county is
more clearly, defined than is that of the at
tOrney-general to protect those Of the state