have been allowed writs of mandamus to compel cities and towns to open and repair them, as being specially and directly interested in such action. An elector was refused a mandamus to compel the county supervisors to order an election for the removal of the county seat.2 A private person was not allowed to use the writ to compel public officers to remove fences and to open an old highway. A private party was refused a mandamus to compel the opening of an alley, though it would have passed through two of his lots and would have enhanced the value of his property. It was considered that the only right he would have in the alley was a right of passage, which he would hold in common with the public. A bidder for municipal work was denied a mandamus to compel the officers to award him the contract, though he was the lowest bidder. It was stated that the injury sustained by the rejection of the lowest bid fell on the public, and not on the relator, whose profits were speculative, of which the law would take no account. Where a mandamus was brought, at the relation of a private party, to compel the county board of supervisors to build a bridge, the court sustained it, because the attorney-general signed the relator's brief and impliedly authorized the use of the name of the state."

§ 230. Subject continued. The great weight of American authority, however, is to the effect that, where the relief sought is a public matter, or a matter of public right, the people at large are the real party, and any citizen is entitled to a writ of mandamus to enforce the performance of such public duty. Among such duties have been in

1 Hammar v. Covington (City), 3 Metc. (Ky.) 494; Catlettsburg (Trustees) v. Kinner, 13 Bush, 334. Linden v. Alameda Co. (Sup'rs), 45 Cal. 6.

3 Atwood v. Partree, 56 Conn. 80. Heffner v. Com., 28 Pa. St. 108. Com. v. Mitchell, 82 Pa. St. 343. 6 People v. San Francisco (Sup'rs),

36 Cal. 595; Stoddard v. Benton, 6 Colo. 508.

Chumasero v. Potts, 2 Mont. 242; State v. Gracey, 11 Nev. 223; State v. Francis, 95 Mo. 44; State v. Van Duyn, 24 Neb. 586; State v. Brown, 38 Ohio St. 344; State v. Ware, 13 Oreg. 280; Sansom v. Mercer, 68 Tex. 488; Wise v. Bigger, 79 Va.

3

6

5

cluded: the calling of an election to fill public or municipal offices; the restoration of a highway to its former condition by a railroad company as required by its charter;2 the running of its trains by a railroad company across a river to its legal terminus; the opening and working of a public road; the direction by a city council to the city solicitor to proceed to sell according to law the lands of delinquents to enforce the payment of taxes; the assessment by the assessor of property subject to assessment; the selection of two newspapers of opposite politics wherein to publish the session acts; the maintenance of a certain bridge as a public highway; the maintaining, opening and closing of bridges over a certain river; 10 the widening of a street in a city;" the issuance by a county treasurer of his warrant for the collection of a tax; 12 the making out of the list of the stock of a railroad company for taxation by the auditor of the county on the failure of the company to do so; 13 and the issuance by a county auditor of his duplicate for the tax on the real estate in the county, without adding

9

269; People v. Board Educ., 127 Ill. 613; Ottawa (City) v. People, 48 Ill. 233; State v. Weld, 39 Minn. 426; Attorney-General v. Boston, 123 Mass. 460; State v. Marshall Co. (Judge), 7 Iowa, 186; State v. Jefferson Co. (Canv'rs), 17 Fla. 707; McConihe v. State, 17 Fla. 238; Union Pacific R. R. v. Hall, 91 U. S. 343; State v. Kearney (City), 25 Neb. 262; People v. Collins, 19 Wend. 56; Ford v. Cartersville (Mayor), 84 Ga. 213; Moses v. Kearney, 31 Ark. 261; Hancock v. Perry (Dist. Town), 78 Iowa, 550; Clarke Co. (Com'rs) v. State, 61 Ind. 75; State v. Camden, 39 N. J. L. 620; Hyatt v. Allen, 54 Cal. 353; People v. Sullivan Co. (Sup'rs), 56 N. Y. 249; Pumphrey v. Baltimore (Mayor), 47 Md. 145; People v. Bloomington (Mayor), 63 Ill. 207.

1 McConihe v. State, 17 Fla. 238; State v. Brown, 38 Ohio St. 344; State v. Ware, 13 Oreg. 381; Sansom v. Mercer, 68 Tex. 488.

2 State v. Hannibal, etc. R. R., 86 Mo. 13.

3 Union Pacific R. R. v. Hall, 91 U. S. 343.

4 Hall v. People, 57 Ill. 307.

5 People v. Collins, 19 Wend. 56. 6 State v. Camden, 39 N. J. L. 620. 7 Hyatt v. Allen, 54 Cal. 353. 8 People v. Sullivan Co. (Sup'rs), 56 N. Y. 249.

9 Pumphrey v. Baltimore (Mayor), 47 Md. 145.

10 Ottawa (City) v. People, 48 III. 233.

11 People v. Brooklyn (Com. Coun.), 22 Barb. 404.

12 People v. Halsey, 37 N. Y. 344. 13 State v. Hamilton, 5 Ind. 310.

to the valuation an additional per cent. which was added by a state board of equalization, which was not duly constituted.' The right of a private party to be the relator in a mandamus proceeding to compel the performance of a public duty does not exist, when such duty is due to the government as such. In such cases a private party cannot interfere, but the government through its officers alone can apply for the writ.2 A creditor of a state was refused a writ of mandamus, when its effect would have been to exercise a supervisory control over the state treasurer and the auditor of state in the conduct of their offices. Such officers are liable to the state and not to its creditors, who cannot supervise the settlements made by those officers with the various tax collectors. Of course, when the state as such is directly interested in the matter, it should apply through its legal officer, and a private party will not be allowed to enforce the rights of the state by this writ.'

§ 231. Public officers, but not their agents, can apply for this writ as relators, even against their co-officers. When the law imposes a power or duty upon a board of officers, and to do it they require the assistance of a mandamus, they may apply for it." Agents or servants, however, cannot assert the rights of their principals and thereby obtain a mandamus in their own names. A committee of a town appointed to inspect the books of the overseers of the town cannot bring a writ of mandamus in their own names to compel such overseers to deliver to them such books for inspection. The committee are not public officers, entitled by their office to the custody of those books, nor charged with any public duty concerning them. The rule, that a party cannot sue at law a partnership, board of trustees, or

1 Hamilton v. State, 3 Ind. 452. 2 Union Pacific R. R. v. Hall, 91 U. S. 343; State v. Weld, 39 Minn. 426; Attorney-General v. Boston, 123 Mass. 460; Chicago, etc. R. R. v. Suffern, 129 Ill. 274.

3 State v. Dubuclet, 28 La. An. 85. 4 State v. Carey (N. Dak., June 16, 1891), 49 N. W. Rep. 164.

5 Holland v. State, 23 Fla. 123. 6 Bates v. Overseers of Poor, 14 Gray, 163.

other board, of which he is a member, does not apply to mandamus proceedings.1

3

§ 232. Who may be joined as relators.- All the parties interested may be joined as relators in a mandamus proceeding, but it is not necessary to join all of them. If, however, other interested parties may be affected by the relief granted to the relator, the writ should be in behalf of all such interested parties, or should show that separate action can be taken on the relator's claim without injuring the other interested parties. In order, however, that parties may be joined as relators, they must have a right common to all of them, must have a joint benefit in the performance of the act or duty required of the respondent, and must be joint sufferers, because of the non-doing. A mandamus must not include more than one case, whether of the same or many individuals. Two or more distinct rights cannot be joined in one proceeding, at the instance of two persons, though they succeeded each other in the same office. Where a court of equity had decreed onefourth of a certain sum of money to each of four petitioners, a mandamus, brought by two of them against a state officer to compel the payment of their proportions, was denied, because the interests of the relators were separate.' Where several persons have been turned out of their offices, though their offices are the same, as common councilmen of a municipality, they cannot sue out a common writ of mandamus to compel their restoration, since the wrong done to one is no wrong to the others, nor was the election of one the election of the others. Their interests are several.10 If an alternative writ of mandamus is issued in such

1 Cooper v. Nelson, 38 Iowa, 440. See § 235.

2 Newman, Ex parte, 81 U. S. 152; Hammar v. Covington (City), 3 Metc. (Ky.) 494.

3 Maddox v. Graham, 2 Metc. (Ky.) 56.

4 Lee Co. v. State, 36 Ark. 276.

6

5 Haskins v. Scott Co. (Sup'rs), 51 Miss. 406.

6 Haskins v. Scott Co. (Sup'rs), 51 Miss. 406; King v. Kingston (Mayor), 8 Mod. 209.

7Stephen's Nisi Prius, 2323.

8 Scott, Ex parte, 8 Dowl. 328.

9 Heckart v. Roberts, 9 Md. 41. 10 Andover, Case of, 2 Salk. 433;

a case, it will be quashed if it has been returned; if it has not been returned, it will be superseded.' Where, however, several persons were similarly situated and had a common interest at stake, they were allowed to join in one mandamus proceeding. They were four officers, against whom charges were preferred, in globo. They were tried at the same place and time, and without any severance, and the same testimony was adduced against one and all, and they were removed from office by a single decree.2

233. Does the writ abate by the death of the relator or the expiration of his term of office? It is held that, when a private party applies for a mandamus, the proceedings abate with his death, but the death of a copartner among the relators does not abate the writ. When, however, the mandamus is prosecuted by a public officer in his official capacity for the public benefit, the law regards the office, and not the adjunct name of the individual, and the writ will not abate at the end of his term, but shall be continued by his successor.5

§ 234. The writ must issue against him whose duty it is to do the act desired.— The writ of mandamus must issue directly against him whose duty is it to do the thing the parties wish done. The writ has been refused, because the respondents had not the power to do the act desired: to a parish assessor and tax collector to levy a tax; to a town council to restore certain moneys in the hands of the town treasurer to the school account, which by their order he had deducted from that account; and to a county to com

12 Mod. 332; King v. Chester, 5 Mod. 10; S. C. as Anon., 2 Salk.

436.

8

Head, 650; Hardee v. Gibbs, 50
Miss. 802.

6 Rowland, Ex parte, 104 U. S.

1 King v. Kingston (Mayor), 8 604; Fry v. Reynolds, 33 Ark. 450;

Mod. 209.

People v. Hayt, 66 N. Y. 606; People

2 State v. Shakspeare (La., Dec. 1, v. Crotty (Village), 93 Ill. 180; Far1890), 8 S. Rep. 893.

3 Booze v. Humbird, 27 Md. 1. 4 People v. Essex Co. (Sup'rs), 70 N. Y. 228.

Felts v. Memphis (Mayor), 2

rell v. King, 41 Conn. 448; State v. Penn. R. R., 41 N. J. L. 250; State v. Shreveport (City), 29 La. An. 658.

7 State v. Fournet, 30 La. An. 1103. 8 State v. Union (Town Council)