and accepted, and the right is not, therefore, affected by the subsequent discontinuance of the road. 1

427. Where, by an act of legislature, the duty is devolved upon the mayor and common council of a city, together with other persons specified, of appointing commissioners to determine the proper water line for the erection of wharf-heads, the statute being mandatory and not merely directory in its provisions, the enforcement of the duty is a proper subject for the exercise of the jurisdiction by mandamus, since a positive, statutory right is created, and the party aggrieved has no other redress, either legal or equitable.2

$428. County commissioners, who are vested by law with the power of directing that a portion of the expense incurred by the town in making a highway shall be paid out of the county treasury, and who have refused the exercise of this power in a given case, can not be compelled to exercise it by mandamus, it being of a judicial nature, and therefore not subject to control. And this is so, regardless of whether the commissioners have decided properly or improperly upon the application.

$429. Notwithstanding the jurisdiction by mandamus over municipal officers entrusted with the location of streets and other kindred improvements, is, as we have seen in the preceding sections, well established and clearly defined, it will not be exercised to the exclusion of special remedies provided by law. Mandamus will not, therefore, lie to a board of county commissioners, commanding them to locate a particular highway and to make an order for the payment of damages to be thereby sustained, where a statute has provided ample remedy by appeal from the decision of the commissioners.5

CHAPTER VI.

OF THE PARTIES TO THE WRIT.

I. PARTIES FOR WHOM THE WRIT IS GRANTED,

II. PARTIES AGAINST WHOM THE WRIT IS GRANTED,

§ 430 440

I. PARTIES FOR WHOM THE WRIT IS GRANTED.

§ 430. Proceedings instituted in name of state or sovereign. 431. Degree of interest, necessary on part of relator; distinction between cases of public and private right.

432. The distinction denied in some of the states.

433. The distinction further illustrated.

434. Real party in interest should be relator; payment of order on city treasurer; joinder of different claimants.

435. County commissioners not proper relators for mandamus to keep turnpike in repair.

436. Degree of interest fixed by statute; voters for location of county

seat.

437. Survivorship of action.

438. Mandamus to admit child to public schools; the father a proper

relator.

439. Distinct interests can not be joined; restoration of members of common council; damages for laying out road.

$430. The remedy by mandamus, as discussed and illustrated in the preceding chapters, has been shown to be substantially a civil remedy in its nature, and one which is applied for the protection of purely civil rights. The proceedings, however, are usually instituted in the name of the state or sovereign, upon the relation or information of the party aggrieved. It is difficult to perceive any satisfactory reason why the proceedings should not be conducted as in ordinary

civil actions for the protection of private rights, merely in the name of the actual parties in interest as plaintiff and defendant, as is done in some of the states, without introducing the state or sovereign power as the prosecutor. This method, however, of instituting the proceedings is of very ancient origin, and seems to have had its foundation in the theory which formerly prevailed, regarding the writ of mandamus as purely a prerogative writ, issuable not of right, but only at the pleasure of the sovereign, and hence issued only in his own name and as an attribute of his sovereignty. And while the tendency of the courts in modern times is to disregard the prerogative theory of the writ, and to treat it as an ordinary writ of right, issuable as of course upon proper cause shown, many of the courts still adhere to the former theory, so far, at least, as to consider the proceedings properly instituted only in the name of the state. Thus, in Ohio, it is held that from the nature of the writ as a command issuing from the sovereign power, it is properly prosecuted in the name of the state as the sovereign, upon the information of the actual party in interest, and that the adoption of the code of procedure has not made any essential change in the writ or proceedings thereunder in this respect.1 And in Iowa, pro

1 State v. Commissioners of Perry, 5 Ohio St. 497. The court, SCOTT, J., say: "A question has been made in this case, whether the proper parties are before the court. The respondents claim that the state of Ohio is not a proper party, and that the relators have not such an interest in the subject matter as will entitle them to the remedy which they seek. The 570th section of the code provides that the writ 'may issue on the information of the party benefi cially interested,' and we think the facts stated in the information show such a beneficial interest in the relators as entitles them to relief. The subject matter of complaint is the refusal by public officers to perform

a duty imposed on them by law, and in a case like the present it must be difficult to point out any mode of obtaining adequate redress, if the performance of that duty can not be enforced by mandamus. The question as to the prosecution of the writ in the name of the state is purely technical, and if this mode of prosecution be informal under the code, leave would of course be given to amend. But we incline to think this mode of proceeding in mandamus proper. The writ is from its very nature and definition, ‘a command issuing in the name of the sovereign authority.' Bouvier's Dict. Blackstone says: 'It is a command issuing in the king's

ceedings in mandamus are regarded as a prosecution, within the meaning of the constitution of the state which requires all prosecutions to be conducted in the name and by the authority of the state. It is, therefore, considered erroneous in that state that the proceedings should be conducted in the name of an individual citizen, and where the object sought is to enforce a duty for merely private ends, the action should be conducted in the name of the state, upon the relation of the informant. The tendency of the courts, however, is to regard the use of the name of the sovereign power as prosecutor to be merely nominal, the remedy being regarded as essentially a civil remedy.2

1

§ 431. As regards the degree of interest on the part of the relator, requisite to make him a proper party on whose information the proceedings may be instituted, a distinction is taken between cases where the extraordinary aid of a mandamus is invoked, merely for the purpose of enforcing or protecting a private right, unconnected with the public interest, and those cases where the purpose of the application is the enforcement of a purely public right, where the people at large are the real party in interest. And while the authorities are somewhat conflicting, yet the decided weight of authority supports the proposition that, where the relief is sought merely for the protection of private rights, the relator must show some personal or special interest in the subject matter, since he is regarded as the real party in interest and his rights must clearly appear. On the other hand, where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party, and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special inter

name.' In the United States it has always been issued in the name of the sovereignty by which it has been authorized. We apprehend the code does not contemplate an essential change in the character of the

writ or the proceedings under it From the nature of the remedy this suit then is properly prosecuted in the name of the state."

1 Chance v. Temple, 1 Iowa, 179. 2 Brower v. O'Brien, 2 Ind. 423.

est in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws.1

§ 432. Notwithstanding the strong array of authority in support of the doctrine as laid down in the preceding sec