Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1892-10-13

son" in the name of the state, when the
| attorney general refuses to act, and
said: Before such statute, the courts
of the state might perhaps, in proper
cases. have authorized proceedings in
, the name Of the attorney general, If
! that officer wrongfully refused to act
| and it was necessary to prOcee in his
name" That action was commenced by
a private relator on his own complaint;
but the court having become, as stated
/ in the opinion, embarrassed by the
/ form of the proceedings" the same
/ were, on the suggestion of the court
amended by the attorney general sign
ing the summons and information nunC
/ pro tune. Thus, it is apparent, that the
court regarded the want Of the attorney
/ generals signature, as mere defect of
form, and not Of substance. The
learned counsel for the defendant char
acterizeS the last quotation as a mere
Obiter dictum; and it may have been
subject to such criticism at the time it
was said. However that may be, the
proposition received an authoritative
sanction from the same learned chief
: justice speaking for the whole court III
/ The State eX rel Drake VS.. Doyle, Sec
rotary of State, 40 Wis, 1856 ct seq.
That was an application made by
Drake, as relatOr by his own complaint
and by his own attorney in the name of
the state for Il mandamuS to compel the
secretary of state to revoke and cancel
a license to an insurance company; and
the attorney general appeared. as cOun-
sci for and defended the secretary.
Chief Justice Ryan, speaking for the
whole court, there said: 1T was stated
by the attorney general that the suit
of the reIatOr against the insurance
company had been settled; that the re-
latOr has no further interest in the QueS-
ton, and therefore no further right 10
the writ. The fact does not appear Of
record, but it is immaterial SO far as
the private right of the relatOr is con-
cerned it is now well settled that this
court would assume original juriSdic-
ton to enforce it." Then, partly quot
ing from his former opinions, he said:
I But in Il government like ours, public
rights of the state and private rights
of citizens often meet, and may well
be involved in a single litigation. SO
it may be in the exercise of the original
jurisdiction of the court. The prerOg-
ative WlitS can issue only ut the suit
of the state, or the attorney general IN
the right of the state. They may go Oh
the relation of a private person, and
may involve private right. And the
question before us is not upon the
private right of the relatOr, and is ill
dependent Of the accident that there IS
relatOr in the case. The question on
which the exercise Of jurisdiction here
must turn, is, whether the subject
matter of the writ is enc 'quOd al
statum republican, pertinet'; one aft
fecting the sovereignty of the state
its franchises or prerOgativCS. And on
this question there appears to us to
be no room for doubt. Whether
the respondent be right or wrong in
his view, and that is for this court and
not for him to determine, it is very
certain that it concerns the state at
large, til It one of its principle officers
executes his office in positive and de-
lberate disregard of a public statute
defining its duties. Such q case when
presented is one eminently calling for
the exercise Of our original juriSdic-
ton; one, with or without a relatOr,
eminCntly fit to be presented to the
court for adjudication The writ of
mandamuS, in such Il case, eminently
writ" In Merrill on Mandamus, just
published, the conflicting decisions up
on the question whether Il public right
can be enforced by a private party,
as relatOr, is considered and it is there
said, that ''the rule refusing the prIyi-
lege to private parties of obtaining q
mandamuS to enforce public duties is
one of discretion and not of law, AMI
the court will ignore it when the at
torney general refuses to appear to
complain of alleged omissions of duty
by public officers" Id. Sec. 229. 1t
is there further said, that: ''The great
weight Of American authority, is to the
effect that, where the relief sought is
a public matter or q matter of public
party, and any citizen is entitled to
the writ CT mandamus to enforce the
performance of such public duty" Id
Sec. go, citing numerous cases. That
such is the settled rule in this state
is manifest from the quotations made
from the opinion Of Ryan, G. J. in the
State eX rel Drake V. Doyle, supra
The learned counsel for the defendant
comedies, that the court of Kings
Bench always, so far as known, enter
tanned the application for a mandamus
of any person to compel public Off
GER public body or corporate creature
to perform a duty enioined by the
law, Notwithstanding the petitioners
injury was not peculiar, or different
from that suffered by Others" but he
insists with much elaboration, that
! such supervisory control is enforced
upon different principles from those
| maintained by the court of equity in
| granting preventive relief for the pro-
! lection of the rights Of IT'S suitors. e
| 1t is true, as argued, that the writ Of
| injunction issues upon the determina-
! ton of The controversy to enforce the
| decree entered therein; aud hence, is
| generally regarded as merely remedial
! in its nature; whereas a mandamuS
| issues at the commencement of the ac-
ton and is to enforce a strictly legal
right. This difference confronted the
court in the cases against the railroads;
| and was deliberately considered in the
opinion of the court by Chief Justice