Dean v. Dimmick

Spalding, J. This proceeding was instituted by the plaintiff, a private party, by the service upon each of the defendants of the petition and notice of application to the district court for an order directing the issuance of a peremptory writ of mandamus, commanding the defendants to forthwith remove their respective offices, namely, the offices of judge of the county court, register of deeds, and auditor of McKenzie county, from Schafer to Alexander in' said county. The petition set out the holding of an election under the provisions of chapter 77, p. 159, Laws 1905, and that at such election Schafer received a majority of the votes cast, and was duly declared to be the county seat of said county by the issuance and publication of a proclamation by the county commissioners, as required by said chapter. It further alleges that said officers removed their said offices to Schafer, and still continue to -maintain them at that place. We are asked to decide on the constitutionality of said -chapter. The petition was demurred to by the defendants, and the district court sustained such demurrer, and it is in this court by appeal. We are met by several claims of error. The decision of one of such claims will dispose of the appeal. The proceeding is not instituted by or on behalf of the state, either on the relation of the Attorney General, or of any citizen of McKenzie county, and it is not alleged -that any application was made to the Attorney General for leave to proceed in the name -of the state. It is contended that the proceeding cannot be maintained by a private individual, and that the constitutionality of a law will not be determined upon an application for a writ of mandamus made by, and in the name of, a private party, when the subject-matter is one of a public nature. On the other hand, it is maintained that such doctrine applies only to the writ when issued, and that, preliminary to the issuance of a [399] writ, it is unnecessary to entitle the proceedings, and that the constitutionality of a law can be questioned in any proceeding. We have given the question involved very careful consideration, and while its proper solution is not without doubt, have arrived at the conclusion that the plaintiff has not placed himself in a position to demand this writ. The question is one of public concern, in which all the citizens of McKenzie county are interested. The plaintiff shows no interest further or other than that possessed by all citizens of the county. While the mere entitling of a proceeding may be a matter of slight importance, and in some cases a formality, yet in this proceeding the title is used to indicate who the moving party is, and, having been used, it shows that the move is not being made by the public, and the petitioner does not even allege that it is made on behalf of other citizens similarly situated. In State ex rel Dakota Hail Ass’n v. Carey, 2 N. D. 36, 49 N. W. 164, it is said that the required affidavit may be properly made by any citizen of the locality affected, where the controversy does not concern the state as such, but does concern a large class of citizens in common. This statement, however, refers only to the competency of a private individual to make the affidavit, and does not determine who may institute the proceeding, or in whose name it may be brought. It is said in the same case “that the name of the state should be inserted in the writ, in connection with the name of the relator, in all cases, whether the matter is one in which the state as such is strictly a party in interest or not, or whether the question is one of public concern or purely private dispute.” But in this proceeding it is not attempted to show that the right which the petitioner seeks to secure is one which affects him in any way peculiar to himself and from the nature of the controversy we must assume that it only affects him in the some manner as it affects all other taxpayers and citizens of the county, all of whom are interested in the location of the county seat. In such a case we think the matter should not be litigated in this manner. The public has a right to be heard; and, if we were to determine the constitutionality of the statute in question, and on which the result may depend, we should have to pass upon the rights of the public at the instigation of a private citizen, in his personal capacity as a private suitor. In the meantime other proceedings, by other private individuals, might be instituted, the rights of none of whom would be settled by the decision in this case. Each citizen of the county [400] might see some additional reason why the law should be held constitutional or unconstitutional, and '¡desire to present it to the court. Several authorities are cited on this and analogous questions, which we consider as not being in point. It is contended that mandamus proceedings cannot be maintained in any case to determine the constitutionality of a law. This does not follow from our holding in this case, and there are few, if any, of the authorities cited which on close analysis sustain this principle. Most of them are to the effect, when closely scrutinized, that courts will not entertain an application for a writ of mandamus for the purpose of testing the constitutionality of a statute when not presented to the court long enough before action is necessary to give it an opportunity to thoroughly consider the question involved. This we think is a very sound rule, but it is not applicable to the proceeding at bar. In addition to the authority from our own court which we have cited, we call attention to Fraser et al. v. Freelon, Judge, 53 Cal. 644, and Davis v. Superior Court, 63 Cal. 581. The appellant asked leave, on hearing in the district court, to amend forthwith by .substituting the state as plaintiff. Permission to do so was denied for the time being, but in the order sustaining the demurrer permission was granted to amend on payment of costs. Appellant declined to comply with the terms imposed, which, in our judgment, were reasonable under the circumstances. By reason of the foregoing conclusion, it would be improper to pass upon the question raised by the respondent as to the effect of delay in commencing the proceeding. The order of the district court is affirmed. Morgan, C. J., concurs.