The record-union., 1893-05-01
MUST SHOW THE RECORDS.
Judge CatIin's Mandate to the Sur
veyor-GeneraI.
The Applications for Lieu Lands, Now
Locked in His Safe, Must be
Open to Inspection.

this county on Saturday, the effect of
which will be very far-reaching. 1t is
the first real check that the ring which
has been gobbling up the public lands of
the State for many years has received.
Judge Catlin rendered his decision in
the mandamus suit brought by Z. B.
Willis in the name of the people of the
State to compel lSurveyor-General Reich
ert to allow him to inspect large num-
Der of applications for lieu lands which
are locked up in his safe. The decision,
which overrules the Surveyor Generals
demurrer, is as follows:
GENERAL VS.. SPECIFIC DUTIES.
The People, ETC.. by relation of L. B.
Willis, VS.. Theo. Reichert, Surveyor
General, etc. Petition for mandate.
With respect to the necessity of a spe-
cific demand by the relator for permission
to inspect the records in question, l find
that both Merrill and High agree to a dis
lnction existing between the perform
ance of q general public duty on the part
OF the officer and the performance OF
specific duty due to private person.
In the former class of cases it is said
that ''the law stands in the place of a de-
mand, and the neglect or omission to
perform the duty stands in the place of a
refusal" High, Sec. Al, p. Al, Sec. IL, p.
oy Justice Field of the United States Su-
preme Court in the case of Virginia VS..
Rives, 100 United States Supreme Court
Rep, page 3l3, where it is said that in
this class of cases the duty being strictly
OF a public nature, not affecting individ-
uai interests, and there being no one spe-
clhcalIy empowered to demand its per-
formance, there is no necessity for a lit
eral demand and refusal.''
In this case 1t is alleged that the re-
spondent keeps the records referred to in
his safe and refuses any inspection of
them by the relator or by any other per-
sons. This, think, in this case, is a suf-
hclent averment of demand and refusal.
CONCERNING FEES.
With respect to the neglect to perform
the duties imposed upon the respondent
under Section 1914 of the Political Code,
namely, to make certain report on the
first Monday of each month to the Con-
troiler, and to pay the fees collected by
him into the State Treasury, there is no
allegation of any demand or refusal to
perform those duties.
There Is special provision made by law
requiring the Controller to see that these
and other duties are performed. Subs
IL, Y, 13, IA, 10 of Section 433, Political
Codel
The averment of the petition is merely
that respondent has neglected to make
the reports or to pay over the moneys.
think, as it is particular duty to be per-
formed at particular dates and under the
supervision of a designated officer of the
State, that the respondent should be put
in that fault which results from a speci-
fed demand and refusal before being re-
quIred to answer to this writ.
LIEU LAND APPLICATIONS.
There is another demand in the writ
for the performance OF certain duties
which are in the nature of general duties.
/ refer to the duties imposed by Sections
1895 and 340G, the former of which re-
quires certain record to be kept of ap-
plications to purchase lands: and the lat
ter that the respondent must communi-
cate with the United States Land Office
and ask that the lands described in such
applications whether they be in place or
are lands in lieu thereof be accepted in
part satisfaction of the grant under which
they are sought to be located.
While Section 3406 does not designate
the time within which this communica-
ton must be made it is obvious from the
character of the duty that it should be
performed without delay.
The petition AYERS that some 500 appli-
cations to purchase were made between
the first day of December, 1892, and the
first day of April 1893; that a fee of 50
upon each of said applications was paid
as required by law, and that each appli-
cation was received and filed or noted:
United States Land Office has been made
requesting the acceptance of. the applica-
tions as required by Section 3406.
This neglect to communicate with the
United States Land Office and ask for the
acceptance of the applications follows as
a consequence the keeping of the applica-
tions from thee eye of the public in the
safe of the respondent; the commission
OF the one act is the commission of the
other, and the two constitute the derelic-
ton OF public duty complained of
NOT A PERSONAL MATTER,
It is objected that the relator is not
shown to have a beneficial interest
peculiar to himself and different from
that of the mass of the community, The
rule invoked by this objection applies to
cases where private person seeks to
coerce an officer to the performance of
duty, but not where, as in this case. the
people complain by the Attornev-(ien-
eral and seek to enforce public right.
This distinction is clearly maintained
by the text-writers-Mr. High in his
work upon Extraordinary Legal Reme-
dies" Section 433, says, when the ques-
ton is "one of public and not of private
right, the people are the real party in
interest, and the relator need not show
any personal interest In all such cases
the refusal of the officers to act is no more
the concern of one citizen than another.
and II Is the right, If not the duty, of
every cltlAeH 10 interfere and see that the
public grievance is remedied."
In the case of City of Ottawa VS.. The
People, is III. 233, the Supreme Court
of illinois said: when the remedy is re-
sorted to for the purpose of enforcing
private right, the person interested i'm
having the right enforced must be the
Telator. The relator is considered the
real party and his right to the relief must
clearly appear, but where the object is
the enforcement of a public right. the
people are regarded as the real party and
the relator need not show that he has any
legal interest in the result 1t is enough
that he is Interested as a citizen in having
the laws executed, and the duty in oues
ton enforced
MUST BE OPEN TO ALL CITIZENS.
There can be no question in regard to
the public nature of the duties in ones-
ton in this case. Section 1892 of the Po-
htical Code says: ''The public records
and other matters in the Office of anv
officer are at all times during office hours
open TO the inspection OF any citizen of
this State" and Section 1892 of the Code
of Civil Procedure provides that EVERY
citizen has right 10 inspect and take q
copy of any public writing of this State
except as otherwise provided expressly
by statute" and public writings by Sec
ton 1894 of the same Code are defined to
be: l. laws; ,, judicial records; 5, other
official documents; (. public records kent
IN this State of private writings.
The duty thus enjoined could not be en-
forced, nor could the absolute right of the
citizen thus given be enjoyed under the
rule contended for by the respondent. At
least it is difficult, If not impossible. to
find plain, speedy, and adequate remedy
in the ordinary course of law otherwise
than by the writ of mandate.
10 ssNFff fur L.