Evening star., 1914-04-06

He E\ ENlNG SIAR, !.
State agt. Stein, 13 Neb., 5ce the Ne
braska statute provided only for the
action at the instance of ''the prosecuting
attorney of the proper county, or of
any citizen of the state who shall claim
any office which is usurped. invaded or
unlawfuly held and exercised by an
other"
In Reynolds agt State 81 Ind. 392, and
State agt. Reardon. 16l Ind. 24a. the
court was considering a statute pro-
be filed by the prosecuting attorney in
the circuit court of the proper county.
upon his own relation, whenever he shall
deem it his duty to do so, or shall be di-
rected by the court or other competent
authority, by any person on his own
relation. whenever he claims an interest
IN the office, franchise. or corporation
which is the subject of the information"
1t was there held that, under the lirnita
tons of the statute, quo warranto could
not be brought by a private person unless
the relator could show some right or
interest in the Office himself
In People agt. Attorney General. %
Barb, ia. and People agt. Fairchild. 81
under a statute of New York. providing
that "the Attorney General may maintain
an action upon his own Information or
upon the complaint Of private person."
II was there held. under the restrictions
of the statute, that a citizens and tax
payer could not bring the action on be-
half of the public.
To the same effect are Everding agt.
McGInn. 23 Ore, 10. and Robinson agt.
Jones. IA Fla, 256. where the courts were
considering statutes which are substan-
TALLY the same the statute of New
York, and where the court, in each in
stance. adopted the construction placed
upon the statute by the New York court.
md fha ,<a s$f,
attorney general Of the state or any cir
cult or prosecuting attorney Of the coun-
ty in which the action is commenced"
may exhibit an Information, lat the re-
lation of any person or persons desiring
to sue or prosecute the same The court
construed this statute as not being man
datory, and in the decisions relied upon
by respondent State agt Tally. 1856 Mo-.
sd. and State agt. Taylor, 2OS. Mo-, 42),
refused to compel the prosecuting attor-
ney to file the information at the request
of a third person.
In Courts Of Michigan.
The same question was before the
Michigan supreme court in Yates agt. at
torney general, Al Mich, 7oS. and Coon
agt. attorney general. AZ Mich, 65 cited
by respondent. where the action could
be brought only by the attorney general
in the supreme court In the former case
it was held that the court would not re-
view the discretion of the attorney gen.
eral. In the latter case the court refused
to hold that 1t would not under any cir
cumstances compel the attorney general
to file information.
But under a statute subsequently
enacted providing that the information
might be filed by the prosecuting at
torney Of the proper county. on his
own relation. or that Of any citizen of
the county, without leave Of the court,
or by any citizen Of the county by
special leave Of the court the court,
held that this permitted an action by a
private claimant of Office, which ''is
purely private litigation, but that a
private citizen could not bring the ae-
tion on behalf of the public" In
L1moreaux agt. attorney generalA 50
Mich, 146, the court. adhering to the
rule that a private citizen could not
bring the action on behalf of the pub
lie. since all public prosecutions should
be brought by the attorney general
or prosecuting attorney, held that. upon
refusal of these officers to bring the ac-
ton. they could be compelled to do so
by mandamus at the suit Of citizen
and taxpayer.
This. of course. accomplishes Indirectly
what is accomplished directly under Sec
ton 1J4O of our code. 1t Indirectly gave
citizen and taxpayer the right to test
the qualifications of an officer to hold Of
flee. The court was led to this conclu-
sion upon the reasoning that any other
course would leave it in the power of the
Attorney General and prosecuting attor-
ney to arbitrarily retain in Office a per-
son disqualified by law to hold it. On
this point the court, in part, said: IF the
Attorney General and prosecuting attor-
an Information of this kind upon the re-
lation of one who claims that he was
legally elected to an office or of any elector
citizen and taxpayer who is interested
in the due administration of public af-
fairs. then it may happen that if both
of these officers belong to the same po-
litical party as the incumbent of the Of
fee they would for that reason refuse
to move In the matter. and keep In any
county office for the full term person
not legally elected or legally qualified to
hold it. The public are vitally
concerned in every election. What par
ticular individual shall hold a particu-
lar office is not of SO much consequence.
but it is vital to the existence of free
government that there shall be a free.
legal ballot and an honest count, and
that no one shall be permitted to hold an
office not legally elected thereto or quail
fed under the Constitution to hold it If
any elector and taxpayer shall object.
Every honest citizen is interested and
concerned in this matter. and has a legal
right to be SO. The courts ought not to
consent to any holding which will put
the power arbitrarily and without rem
edy or redress into the hands of any one.
two or three men 20 prevent a candidate
for office from establishing his election
to any office, or any citizen from inquiry
in good faith into the rights Of any per-
son to hold an office. This would GER
tainly be the result of the position taken
by the Attorney General
Duty to Bring Action.
In People agt. Haley. % ILL.,. $50, the
court, under statute providing that quo
warranto may be brought only by "the
| attorney general or states attorney of
the proper county, either Of his own ac-
cord or at the instance Of any Individual
| relator.' held that the states attorney
may be compelled to bring the action at
| the instance of an individual having a
private right or grievance distinct from
| that of the public at large.
State agt. Taylor so Ohio ST.. 120. in
volved the application Of private in
dividual for leave to file a petition in quo
| warranto under a statute of Ohio which
authorized the attorney general or pros
| ecuting attorney to bring the action Of
his own motion or by leave of court on
the relation of another person claiming