Evening star., 1914-04-06

agt. Martin. 46 Conn, 479; State agt.
| Vail. 90 Mo-. 81: Richards agt. Hammer,
f. n. J. L.. 435 In Ham agt. Bedell
/, oi n. ]. L., 14S. the court. upholding the
| right of a citizen and taxpayer to inter,
| pose by information, not in the name OF
the Attorney General. as the statute re-
uuired, but in the name of the state, ana
| defining person Interested within the
terms of the statute providing that 1T
shall and may be lawful to and for the
| Attorney General, with the leave OF the
| Supreme Court. to exhibit in the Su-
preme Court one or more Information or
| informations in the nature of a quo var
ranto. at the relation of any person or
! persons desiring to sue or prosecute 1he
same, who shall be mentioned IN such
information or informations to be the re
lator or REALTORS" said: As taxpayer
| and inhab bitant of the city. subject to It's
municipal government, he the relatorl IS
| interested in the due selection of its Oh
| ficers, and is entitled to interpose by m
| formation in the nature of quo war
ranto when such officers have been IL
| legally selected
Passed on Similar Statute.
| In State agt Barker. 1l6 Iowa, Sc. in
volving the validity Of the appointment
of board of watcrworks trustees
the court was considering statute
very similar to ours, which provided,
ty attorney, on demand, neglects or re-
| fuses to commence the same. any cltl-
| zen of the state having an interest IN
the question may apply to the court IN
which the action is to be commenced,
or to the Judge thereof, for leave to do
SO. and upon obtaining such leave. may
bring and prosecute the action to final
| judgment" The court, speaking through
mitted that the county attorney re-
| fused to bring the action, and the only
question for decision on this branch OF
the case is, has the relator such an In
| apply to the court for leave to do so?
We think he has such interest. pri-
vate citizen and taxpayer Is undoubt,
edly interested in the duties required
of the several public officials who are
authorized to levy taxes. This is not a
contest over an Office. as We're many of
the cases cited In appellee's brief. put
a matter of public interest in which
relator has a special interest by rea-
son Of being contributor to the
funds.
In State agt. Mason, IA La. Ann, 505,
and Noisin agt. Leche, % La. Ann, 70
the court considering provision of the
Louisiana code. taken from the statute of
Anne, providing that "a mandate to pre-
vent usurpation of an office i'll a city or
other corporation may be obtained by
any person applying for it, held that the
court would consider the words any per-
SON to mean any person having an in
| terest" Under this Interpretation the
court held that Il mere citizen and tax
payer was without standing to maintain
the action. but in State agt. kohnke, 103
La, SSS, the court, while approving the
Interpretation placed upon the words ANY
person appearing in the statute. reversed
the holding as to the degree of interest
which the relator must show to enable
him to exhibit the information. On this
point the court said: THE other reason
assigned by the court is that any person
means any person having an interest,
and that, the statute itself being silent
regarding the degree of interest required
! the courts must supply the deficiency.
This is true: but for more than a hun
dred years before the Mason suit was
filed the courts of the country from
which our code borrowed this term any
person had determined and fixed by a
settled Jurisprudence what this interest
should be, and had settled that any in
habitant of a borough or town has
sufficient interest. Our conclusion must
be that our code, when it says any per-
son.. means what it says: and that.
! therefore, the relator, as a resident and
taxpayer of the city, is competent to
stand in judgment in the case"
Under Statute of Anne.
In a number of states the language of
the statute of Anne, ANY person. has
been incorporated in the statutes, and in
person seeking the writ must not be a
mere volunteer. but must be a citizen or
taxpayer, or both, of the municipality in
which it is sought to oust the officer.
Waterbury agt. Martin. 46 Conn. 479;
Williams agt. Samuelson 131 Wis. 439;
Ham agt- Bedell. 81 N. J. L., las; Com
monwealth agt. MeeSer, Al Pa St, 341.
A careful review of the cases relied
upon by respondent. and referred to in
the opinion Of the learned justice below,
discloses a lack of analogy to the present
case In many of the cases the statutes
under consideration limit the right to
present the information to the Attorney
General or district attorney or to per-
son interested in the office.
In State agt. Matthews, 44 West Vir-
by respondent; the West Virginia statute
provides that the writ may be applied
for only by the Attorney General or
prosecuting attorney. either at his own
instance, or on the relation of any per
son Interested in that case the petition
was filed without the consent of the
prosecuting attorney, and he refused in
open court to give his consent: the court
seems to intimate that, notwithstanding
the limitation of the statute, a person in
terested in the office could, by leave of
court. become a relator to enforce his
private right: indeed. this seems to be
the rule in other states where the statutes
expressly limit the right to bring the
either in his own name or on the reia-
ton of another.
In State agt. Dahl, 60 Minnesota, 1Os
the court held that, under a statute re-
| quirng the consent of the Attorney Cen
| eral as a condition precedent to the
bringing of the action. it might not only
be brought. by leave of court, and with
out the consent of the Attorney General,
| by a person having an interest in the
| Office to enforce private right. but when,
as in the case at bar. the office is ap-
| pontive, and no one, by reason of that
fact, can assert an interest in it. and the
| Attorney General refuses to act, the ac-
| ton may be brought by leave of court
| by a private person having no interest in
the question distinct from the public.
Under Leave of Court.
| On that point the court said: The At
torney General has refused his consent to
the institution of the proceeding. and. if
| his refusal is conclusive, that would end
| the matter. If this be so. there could not
be, in the nature of things, any person
I who would be permitted to file an infor-
nation as against an appointee to pub
lie office, without the consent of the At
torney General the result being anoma-
| lous, in that if the Office We're elective, a
| private party personally interested might
| proceed in the absence of consent. but If
(! it were appointive. the matter would be
| wholly within the control of the law Of
| fcer OF the state. No person could show
| that If an incumbent of any certain ap-
| pointive office was found ineligible, and,
| for that reason. ousted from the place, he
| would be entitled to or would become a