The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-01-21

} A1GoE ana appellant, vs. " W wilma
Al. j. Defiance, Ralph Abbott and
w. FabriciS, as the county canvassin
board of Ward county, North Dakots
respondents.
LA petition In a mandamus pro
ceeding brought in the name of tn
state on the relation of party VIII
does not profess to act in an off1cia
capacity, which shows on it's face tina
the relator lis seeking to vindicate no
a. private right of concern only to him
self but matter of public interest II
which all electors and taxpayers of I
county are concerned, and Interested
equally with him, may be properl,
made and presented to the court By
any citizen Of the locality affected.
| 2-Where the result of the canvas:
of the vote cast upon the proposition
to divide a county and create from a
portion thereof a new county. is an
nounced on Nov. 80, 1908, and pro-
ceeding in mandamus for the purpose
of testing the accuracy and sufficiency
OF the certified statement produced
and announced by the county board OF
| canvassers, is commenced on Jan. 90
1909, and in the interval between these
dates the only public act in any man
ner affecting the new county is the
appointment by the governor of county
commissioners therefor, the laches. and
delay of the relator in the 'mandamus
proceeding are not SO gross and un-
reasonable that court should refuse
TO consider his application upon the
merits.
3-The writ of mandamus is not a
mere writ of right but high prcroga-
tive mandate that win, in the exercise
OF scound judicial discretion and on
equitable principles, be issued only
when called for by circumstances so
exceptiona that If the extraordinary
relief afforded by the writ is refused
q failure or miscarriage OF. Justice will
result. 1t will not be awarded in n.
proceeding involving only the public
interest even where a prima facie right
10 legal relief is shown, If it appears
that 1t will serve no other purpose
than to require an Idle ceremony on
the part of public officers or win pro-
duce barren and fruitless result not
affecting the public interest benef-
cially or otherwise.
"a citizen OF a country acting as
relator in a. matter affecting only the
public right and applying in the name
of the state for a writ of mandamus
viii not be regarded as acting In any
personal sense whatever but ONLY as a
representative of the public interest
and is concluded with reference to any
fact adjudged or admitted or which
might have been adjudged in a for
mer judicial proceeding in which the
same public interest was plaintiff or
defendant; and is bound by the facts
That are or might have been adtudged
IN the former proceeding as fully as
though he were named as a party
thereto.
"a judgment duly entered in an
action or proceeding of which the
court has jurisdiction against conn
" or Its legal representative i'm a
natter of general interest to all its
citizens, is binding upon the latter
.hough they are not nominally parties |
o the suit. To mold that each citi- |
zen or the county after a question is |
nee adjudicated on the application of |
public representative is still at lib |
'rty to commence an action In court |
ma re-litigate the question in his own /
lame would be in effect to nullify |
he judgment and to ignore the rule
hat theswell being of society requires
hat matters once judicially settled
nall not be again repeatedly brought T
nto litigation.
6--Appellant as a citizen of Ward |
ounty applies for a writ OF man
anus requiring the county board of
anvassers to re-convene and prepare
new abstract of its canvass of the
ote cast at an election held upon a
roposition legally submitted to di-
ide Ward county and create from a
art thereof the new county of Noun
rail. AS ground for such application
e shows that said board on it's first
anvass Of the vote cast considered
nd entered in its certified abstract
ertain results taken from tally sheets
nd other memoranda not entitled to
ficial recognition.
Held, that unless it can be said that
ppellant states facts showing that If
ne writ issue and the county board
canvassers produce a new abstract,
VIII show an aggregate result the !
sverse of that formerly produced.
ppellant does not present case that .
Ill warrant the exercise of the extra !
Urinary remedy of mandamus. If,
owever, it can be Said that the petit G
on shows that the result produced q
Y a. recanvass of the vote will be the 4
Of that shown by the first Q
lnvass, appellant is concluded and 7
LII not be heard to question such d
suit. as In a proceeding in certiorari Y
ad1rRd3NatnI / 4
volving the same fact the represen- Z
tive of the public interest admitted t
at the result shown by the abstract G
the board of county canvassers up 9
its first canvass was the true re- n
1t of the vote and the court in pass v
g upon such fact SO determined and II
Judged. "
Syllabus bv the court v
Appeal from district court Ward Il
unity. Tampleton, j. c,
Application by the state of North Il
akota on the relation of Z, M. Da-is, n
+ writ of mandamus requiring re- G,
ondents as the county board OF cam 81
ssers Of Ward county to reconvene es
d prepare a new abstract Of the Ii
tie cast at an election held upon ii
OPPOSITION to divide Ward county la,
d create from a portion thereof the In
w county or Mountrail cc
From an order Of the district court
nying the writ. relator appeals. ia
Order affirmed.
&. w. Gammons and John e.
Gene, attorneys for appellant.
George A. Bangs attorney for res IN
ndents
Opinion Of the court by Ellsworth,
all concurring.
State of North Dakota, ex rel, M. r. al
nehan, respondent. VS.. Paul r.