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


and county and other officers relating to
the performance of their merely min
iSterial duties. The cases cited are of
both classes mandamus to compel
action, and of injunction to restrain il.
. 1t has not been contended. nor can
it be maintained. that either of these
writs can go TO control or restrain any
public officer in the exercise of a polite
al or discretionary power" 81 Wis, 1913
In as much as the use of the writ of
injunction in the exercise of the original
jurisdiction of this court is cO-relatiye
with the writ Of mandamus. the former
issuing to restrain where the latter com
pels action, it is plain that this case, As
against the respondent, is a proper one
for an injunction to restrain unau-
thOriZed action by him in a matter
where his duties are clearly ministerial
and affect the sovereignty, rights and
franchises of the state, and the lib
critics of the people" 81 Wis. 5O4 In
Colorado, under Il similar constitutional
provision to ours, and in Il mandamus
case where the court approYingly cites
several cases from this court, it is said:
Gases of which this court should take
original cOgnizance, directly involving.
as in general they must, questions of
public right, should be brought in the
name of the people. The state or the
public being the main party in interest.
although individual advantage NAV be
gained, the person instituting the pro
6nR(ljnO * 1to1o
also eminenty fitting that such causes
be inaugurated before this court by the
attorney general, or with his consent,
OF. at least, that the refusal of that of
ticCr to act be shown. But we do not
declare such consent or refusal abso-
utC.y necessary. If the main object of
the proceedings is to vindicate a public
right, to protect the interest of the state
in its sovereign character, to prevent
the illegal use of a public franchise as
against the people generally, or a con-
siderable portion thereof, or if it be to
subserye the public il terest in any OF
Inc other matters heretofore mentioned.
i citizen Interested could probably in
stitute the proceeding in the name Of
the people without consulting the at
tOrney general" Wheeler VS.. Northern.
Colorado I'r Co., Pas. r. 1O7. S. c. 9.
Col. 24S. Substantially the same
view Of the question is taken by the
supreme court of South Dakota where
the same constitutional provision is
in force. Everitt VS.. Board Of County
COm'rs, A n. w. r. 29S, and cases
Il.
Michigan constitution (Sec. 3 Art. g.
Omits the word ''injunction;" and yet
in the recent case under the apDOrtiOn-
ment Of that state, Il private citizen
was the relatOr, and the attorney gen
eral appeared for the secretary Of state,
and it was held, that the action was
properly brought, even without asking
the consent of the attorney general;
and it was held, that the conduct of
the secretary in giving notices of cleo
ton could be rightfully restrained by
mandamus. Giddings V. Blacker, 30
n. W. Z. Oh. We have not examined.
but it seemed to be conceded on the
argument that none Of the earlier cOnSti-
tutiOns contained provision like the
cite English cases to the effect, that an
action for a nuisance or other matter
affecting the people generally, the
same as the complainant, could not be
maintained, except by and in the name
OF the attorney general. Baines V.
Baker, l Amber 15S; Strickland V.
Weldon, L. Il. 2S Oh. Div, 426. But the
n in,
very different position than an attOr-
ney general in government
like ours. He is appointed by
patent authorizing him to hold
office during the pleasure of the
Crown; and he is required, with the aid
OF others, to manage all legal affairs
and suits in which the crown is inter
ested. He is a necessary party to all
proceedings affecting the crown, and has
extensive powers of control in matters
relating to charities, lunatics' estates,
criminal prosecutions, etc" Enc
Brit, 60. In all such matters he acts
rs the representative and agent of the
crown, and, as its servant, he has for
centuries enjoyed high prerOgative
rights. But the office is not rs ancient
as that of lord high chancellor. whose
supremacy as a separate judicial officer
and as keeper of the great seal and the
kings conscience, became established
two hundred years before we read of
any attorney general. He enjoys high
prerO gative rights as well as judicial
functions AS chancellor he has for
centuries prescribed his own pIeadings
his own practice and his own WritS,
including injunction, habeaS corpus, pro-
hibition and ne eXeat; and during the
same time he has been a great state
officer, taking official rank, as the high
est civil subject, outside of the royal
family and the archbishop of Canter-
bury-a cabinet minister who habitu-
ally secured the sign manual Of the king
"a member of the privy council and
the presiding officer in the house of
lords. Perhaps there is no better illus
tratiOn of the English theory of a jul
dietary dependent, not only upon the
will of parliament, but also upon the
will of the crown, as expressed through
his lord high chancellor and attorney
general than what occurred in respect
to the case of Colt & Glover V. Bishop
of Coventry & Lichtield. Hobart's re-
ports, page 140, case 1913, tried during
the reign of James [. The action in
volved a mere civil right between pri-
vate parties, in court of law, but in
arguing the case one of the council had
occasion to deny the power of the king
to grant ecclesiastical preferments to be