Welch v. Board of Supervisors

Wright, J. i. publication board of visors: statute construed. The act upon which plaintiff relies (ch. 118, p. 9, 125, Laws of the eleventh general assembly, passed, April 2, 1866), provides, that the of supervisors of the several counties, , ... _ shall,‘at their meeting m the month oí June, 1866, and thereafter, at each regular meeting in the month of January, select two newspajiers having the largest circulation, or one, if but one be published in [202] the county, in which said paper or papers, shall be published all general laws enacted by the present and future general assemblies. The Secretary of State is to furnish to the clerks of the several boards of supervisors printed slips of the laws, and the said clerks are required to deliver the same to the newspapers so selected, for publication. In the paper so selected is to be published all the proceedings of the board. Claims for publishing the laws, are to be audited and paid by the State; all others by the several counties. Construing this statute, our opinion is, that as but one paper was published in Mahaska county, in June, 1866, the board was not bound, nor had it the power to select another, the publication of which was subsequently commenced, in January, 1867, and therein order or allow the publication of the laws of the eleventh general assembly. 2. —where no paper is published. If no paper had been published in June, and two or more had afterward started, they could not in January, 1867, make the selection and direct such pub-it , lication. The reason and policy oí the law is at war with the exercise of such power. It was deemed advisable to give the laws an early general circulation. As to those passed in 1866, no paper could be selected until in June. Soon, thereafter, they were published and circulated in book form. They were thus placed before the people, and the public interests could in no manner be subserved by a further publication after January, 1867. It is as though there should be but one paper published in a county the ensuing January, and therein at that time, the board should order the publication of the laws of the ensuing (12th) General Assembly. This done, the board could not in January, 1869, order a publication of the same laws in a paper started in August, 1868. And as to laws of 1866, they had no more power in January, 1867, than they would in the case supposed in 1869. [203] s__proceedings of board-. But plaintiff claims that whether he liad the right to publish these laws or not, the board was, nevertheless, from the facts found, bound to select his paper, in w]liell 8ll01lld be published their proceedings, if not laws subsequently passed. Our opinion is, that for such purposes, the power was not at an end by the action of the board in June, 1866. 4__'rMlt of action. The question is, however, whether plaintiff could by this proceeding enforce its exercise, and especially whether under the facts, the board was botín d to select bjg paper_ Whether, as matter of law, the organ selected in January, 1867, was a newspaper within the meaning of the act, we do not stop to inquire, for however this may be, the affirmance of this cause, in our opinion, may be incontestibly placed upon the following ground i Plaintiff was not so personally interested in the order asked, sustained no such injury by its refusal, is not a party aggrieved in such sense as entitles him to a suit in his own name and for himself, to enforce a compliance with the law. Rev. 3761, 3762. The law was made for the public good (at «least we are bound so to presume) and not for the benefit of any individual. No publisher has such a vested personal interest in enforcing its provisions, that he can thus resort to the courts, and compel the board to select his paper, and have these laws published therein. The duty is imposed upon the board; they .are the custodians of the power, but no one can insist upon its performance or exercise, because he happens to be at the time the owner and proprietor of a newspaper. As well might any citizen claim that without such publication he had no means of knowing the law; that he took no other than plaintiff’s paper, that it had the largest circulation, and, therefore, he w«as so aggrieved as that he, for himself, could compel the exercise of the [204] power. The State made no covenant or agreement with plaintiff that he should publish, the laws. To illustrate, the law (§ 764) makes it the duty of the county treasurer to publish the tax sales of each year in a newspaper. So of the sheriff, to publish notices .of sales of real property under execution in some paper of his county. § 3311. Then, an executor, in selling real estate at public auction, must make publication as required of the sheriff. § 2380. And other similar cases might be put. Now suppose plaintiff’s was the only newspaper of the county, could he, by mandamus, compel the treasurer, sheriff and all executors to make the required publication in his columns ? There can be but one answer to such an inquiry. These officers might be guilty of a very great neglect of duty, might be responsible in damages to one aggrieved by such neglect; they might suffer in public, estimation and be held responsible before the people, but the plaintiff would have no such interest or right in the exercise of these duties, as to compel the publications. In a word, the difficulty with plaintiff’s case is, he has no clear, legal or equitable right to any thing sought to be enforced by this suit. His right is not immediate to the subject-matter^ and his interest, if any, is so remote or foreign to the object and policy of the statute, that-he should not be heard in this method to seek its enforce ment. Tapping on Mandamus, 28, 388; People v. Canal Board, 13 Barb. 432; Chance v. Temple, 1 Iowa, 179; State v. Country Judge, 2 Id. 280. Affirmed.