function of the return is not simply to show what would amount to a prima facie right in the respondent, in the absence of any allegation to the contrary; but it is to show a right to refuse obedience to the writ, in view of the allegations it contains. And if it does not do this, it is demurrable. And the very object of a demurrer to the return is to test its sufficiency as an answer to the allegations of the writ; and it is obvious that this can only be done by assuming all lested y demurre the material allegations of the writ not denied, nor confessed and avoided, to be true. The plea or answer which the plaintiff may put in to the return is designed to enable him to traverse or confess and avoid it, when it, in the first instance, sufficiently answers the writ, and not to repeat material allegations previously made, which had been left entirely unanswered, in order to obtain the benefit of them. We think, therefore, that the demurrer to the return raises the question of its sufficiency, and of the sufficiency of the relation, and that in disposing of it, not only the return, but every material allegation in the relation not denied nor confessed and avoided, is to' be taken as true. * * *23 The suffey of is SECTION 49.-SAME-THE RETURN PEOPLE ex rel. AMERICAN CENT. RY. v. SUPERVISOR AND CER COUNTY. (Supreme Court of Illinois, 1869. 51 Ill. 191.) WALKER, J.24 * Clerk's return to allern woch The demurrer questions the sufficiency of merely set out the return as a defense to the prayer of the information. The alter- that avelecti native writ stands for a declaration, and the return as a plea. Like on the result of other pleas, it must state facts positively and distinctly. The return wh he had to! should set out the facts fully, so as to enable the relator to traverse no lega them. It is not sufficient to aver conclusions of law. If facts are act was not not stated, or if insufficiently stated, the plea will be held bad. Great-ul er certainty is required in a return than in an ordinary plea in bar. ce Tapping on Mandamus, 352, 370; Moses on Mandamus, 210. In .co lequé. the case of People v. Kilduff, 15 Ill. 492, 60 Am. Dec. 769, it was held that every intendment would be made against returns which doch 3. not answer important facts. 23 See Cyc. "Mandamus," p. 453.tq many. 24 Only a portion of the opinion of Walker, J., is printed. The return does not deny, and we must hold it to be true, that an election was held, judges and clerks appointed, and the majority of the votes cast were in favor of subscription. It does not deny that the proper requisition for an election was made, or that notices were given ten days before the election. It, however, avers that the election was not called, held and conducted according to the requirements of the act of 1859, in this: That there were no legal notices posted. for the election ten days previous thereto, as required by the act, nor were judges and clerks legally appointed to hold the election. There is no effort to specify in what the notices lacked to conform to the legal requirement, or in what the appointment of such officers violated the law or failed to conform to its requirements. From what is averred in reference to these acts, the facts are not stated so that the court can determine whether they are sufficient. In this the pleader has only averred his conclusion as to the illegality of the acts thus set up and relied upon to prevent the peremptory writ from issuing. The return should have specified the particular facts which rendered the notices illegal and the acts omitted in appointing the judges and clerks. * * * 25 SECTION 50.-SAME-INTEREST REQUIRED TO BE SHOWN KN. Maud. 23. PIKE COUNTY COM'RS v. PEOPLE ex rel. METZ. (Supreme Court of Illinois, 1849. 11 Ill. 202.) This was a proceeding by mandamus in the Pike county circuit court, instituted by the relator against the county commissioners of that county, to compel the payment to him of the sum of $125, and interest, which had been originally appropriated by the Legislature to the county, and by a subsequent law set apart for the improvement of the navigation of McKee's creek, in said county, to be expended by the relator. TREAT, C. J.26 It is contended that the relator has not such an interest in the fund sought to be recovered as will authorize him to prosecute this peculiar remedy. The question, who shall be the relator, in an application for a mandamus, depends upon the object to be attained by the writ. Where the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the 25 See Commonwealth ex rel. Thomas v. Alleghany County, 37 Pa. 277 (1860). 26 Only a portion of this case is printed. right enforced must become the relator. He is considered as the real party, and his right to the relief demanded must clearly appear. A stranger is not permitted officiously to interfere, and sue out a mandamus in a matter of private concern. But where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show that he is interested, as a citizen, in having the laws executed, and the right in question enforced. See the case of People v. Collins, 19 Wend. (N. Y.) 56, where this question is much discussed, and the foregoing conclusions are clearly stated. No doubt is entertained of the right of Metz to become the relator, and pursue this remedy. The object of the suit is not a matter of individual interest, but of public concern. Any citizen of the county, especially of the locality interested in having the improvement prosecuted, could become the relator, and obtain the mandamus. There is a manifest propriety in permitting Metz to give the information, and conduct the proceeding. He has the direction of the improvement, and the money, when received, is to pass into his hands, and be disbursed by him. * * Thathe has a legal PEOPLE ex rel. DRAKE v. REGENTS OF UNIVERSITY OF MICHIGAN. (Supreme Court of Michigan, 1856. 4 Mich. 98.) 5.1409 арийску This was an application by the relator, who was a private citizen a pictz seeks of this state, for an alternative mandamus against the Regents of tomaudamus the University of Michigan, founded upon his affidavit, which set Ruqents to elect forth that he was a citizen of this state, that there was, at the time of filing his affidavit, no Professor of Homœopathy in the Department of Medicine of the University, that the Regents, whose duty it was, had not only neglected and refused (although often requested thereto) to elect such Professor, but still neglected and refused so to do. The law, upon which the application was founded (Sess. Laws 1856, p. 234), provides: "That the Regents shall have power to enact ordinances, by-laws, and regulations for the government of the University, to elect a President, to fix, increase and reduce the regular number of Professors and tutors, and to appoint the same, and to determine the amount of their salaries: Provided, there shall always be, at least, one Professor of Homœopathy in the Department of Medicine." 27 WING, J. The first objection is predicated upon the alleged incapacity of an individual citizen, who is only interested in common with all other citizens of the state in the subject-matter of complaint, to institute a proceeding of this kind against a public corporation, 27 Only a portion of the opinion is printed. a Prof of stimolop. sustaining the relations which the University of Michigan does to this state. It is alleged that, where there is a cause of complaint against a public body or corporation, it is the duty of the Attorney General of the state to move against them, and that it would be peculiarly fit, in a matter of complaint of so grave a character as that presented by the affidavit of the relator, that it should be presented by, or be under the control and sanction of, that officer, whose duty it is to act in all such cases. To this it is answered by the counsel of the relator, in substance, that though true it is the matter in question is one that interests the citizens generally, yet the right of every citizen of the state to move in the proper courts in a matter in which the citizens at large are concerned, and in respect to which there is ground of complaint against a public body or officers of this state that they have neglected the performance of some duty imposed upon them by law, is fully sustained both by principle and authority. Upon examination of the authorities cited by the counsel of the respective parties, we find no case decided by the English courts which sanctions this action of their courts on an application of this character, upon the sole motion of a private citizen of the realm. From this it is, we think, to be inferred that the practice was never sanctioned by their courts. On looking into the American authorities cited, we find that the Supreme Court of New York have taken the broad ground in the case of People v. Collins, 19 Wend. 64, and in People v. Tracy, 1 Denio, 618, that in all cases requiring redress, and involving a matter in which the interests of the public at large are concerned, and in respect to which a mandamus is the proper remedy, it is competent for their courts to act upon the relation and motion of a private citizen of the state. The doctrine of those cases was approved and followed by the Supreme Court of Illinois in the case of County of Pike v. State, 11 Ill. 202. These are the only cases to which we have been cited, or which have fallen under our observation, which sanction. the right claimed by the relator in this case. To these authorities, as we have said, is opposed the fact that the English courts, which have moulded and formed the common law, transmitted it to us, and which govern both them and us, have not sustained a course of proceeding like this. The courts of Maine, Massachusetts and Pennsylvania have maintained a doctrine on this subject opposed to the New York and Illinois cases, and have held that, to entitle an individual citizen to be heard as a relator and on his own motion, he must show that he has some individual interest in the subject-matter of complaint which is not common to all the citizens of the state; and whilst we do not intend to say that a case may not arise in which this court would allow an individual to file such a complaint, particularly if the Attorney General or prosecuting attorney (as the case may be) were absent, or refused to act without good cause, we nevertheless express our conviction that this is a case in which the action of the Attorney General would have been proper and necessary. * * * 28 SECTION 51.-MANDAMUS AGAINST BOARD OR PUBLIC COMMISSIONERS v. SELLEW. * Aunt vs a вод (Supreme Court of the United States, 1878. 99 U. S. 624, 25 L. Ed. 333.) WAITE, C. J.29 * In United States v. Boutwell, 17 Wall. 604, 21 L. Ed. 721, it was decided that, as a mandamus was used comms served "to compel the performance of a duty resting upon the person to on the clerk of whom the writ is sent," if directed to a public officer, it abated on his rubdoes not death or his retirement from office, because it could not reach the of- abate on the fice. That principle does not, as we think, apply to this case. There the officer proceeded against was the Secretary of the Treasury death or relire & du? mem rs. This bruis all as with! et requires a !! of the United States, and the writ was "aimed exclusively against of him as a person." Here the writ is sent against the board of county commissioners, a corporation created and organized for the express on purpose of performing the duty, among others, which the relator seeks to have enforced. The alternative writ was directed both to lug at time the board in its corporate capacity and to the individual members by name, but the peremptory writ was ordered against the corporation alone. As the corporation can only act through its agents, the courts will operate upon the agents through the corporation. When a copy of the writ which has been ordered is served upon the clerk of the board, it will be served on the corporation, and be equivalent to a command that the persons who may be members of the board shall do what is required. If the members fail to obey, those guilty of disobedience may, if necessary, be punished for the contempt. Although the command is in form to the board, it may be enforced against those through whom alone it can be obeyed. One of the objects in creating such corporations, capable of suing and being sued, and having perpetual succession, is that the very inconvenience which manifested itself in Boutwell's Case may be avoided. In this way. the office can be reached and the officer compelled to perform its duties, no matter what changes are made in the agents by whom the officer acts. The board is in effect the officer, and the members of 28 See an article by Prof. F. J. Goodnow on "Interest in Mandamus Cases," Political Science Quarterly, VIII, p. 48. 29 Only a portion of the opinion of Waite, C. J., is printed. |