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 CORPORATION COMMISSIONERS v. SELLEW. (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 "to compel the performance of a duty resting upon the person to whom the writ is sent," if directed to a public officer, it abated on his death or his retirement from office, because it could not reach the office. That principle does not, as we think, apply to this case. There the officer proceeded against was the Secretary of the Treasury of the United States, and the writ was "aimed exclusively against him as a person." Here the writ is sent against the board of county commissioners, a corporation created and organized for the express purpose of performing the duty, among others, which the relator seeks to have enforced. The alternative writ was directed both to 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. the board are but the agents who perform its duties. While the board is proceeded against in its corporate capacity, the individual members are punished in their natural capacities for failure to do what the law requires of them as the representatives of the corpo ration. We think, therefore, that the peremptory writ was properly directed to the board in its corporate capacity. In this way the power of the writ is retained until the thing is done which is commanded, and it may at all times be enforced, through those who are for the time being charged with the obligation of acting for the corporation. If in the course of the proceedings it appears that a part of the members have done all they could to obey the writ, the court will take care that only those who are actually guilty of disobedience are made to suffer for the wrong that is done. Those who are members of the board at the time when the board is required to act will be the parties to whom the court will look for the performance of what is demanded. As the corporation cannot die or retire from the office it holds, the writ cannot abate as it did in Boutwell's Case. The decisions in the state courts in which this practice is sustained are numerous. Maddox v. Graham, 2 Metc. (Ky.) 56; State ex rel. Soutter v. City of Madison, 15 Wis. 30; Pegram v. Commissioners of Cleaveland County, 65 N. C. 114; People v. Collins, 19 Wend. (N. Y.) 56. * * * 30 SECTION 32.-REFUSAL TO OBEY MANDAMUS AMY v. SUPERVISORS. (Supreme Court of the United States, 1870. 11 Wall. 136, 20 L. Ed. 101.) Amy having obtained a judgment for money against Des Moines County, Iowa, in the Circuit Court for the District of Iowa, and not 'being paid, procured from the same court a mandamus against Burk'holder and several others, the supervisors of the county, to compel the levy of a tax. The mandamus not being obeyed, he sued them personally. They set up certain defenses, to which he demurred. The court overruled the demurrer, and he brought the case here. SWAYNE, J.31 * * *The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake 30 See, also, City of Ottawa v. People, 48 Ill. 233 (1868). as to his duty and honest intentions will not excuse the offender. The question of the rule by which the measure of damages is to be ascertained is not before us, and we do not feel called upon to express any opinion upon the subject. The defenses set up in the answer of the defendants are clearly bad. The demurrer should have been sustained. * * * 32 SECTION 53.—PROVINCE OF THE WRIT OF MANDAMUS HASSEL'S CASE. (Court of King's Bench, 1719. 1 Str. 211.) Fazakerley moved for a mandamus to be directed to the justices of peace of the county of Chester, commanding them to make a rate to reimburse one Hassel the money he had expended as surveyor of the highways. And it was granted. JOHN GILES' CASE. (Court of King's Bench, 1731. 2 Str. 881.) Mr. Reeve moved for a mandamus to the justices of the city of Worcester, to grant a license to Giles to keep an alehouse, insisting that, it being within a city, St. Geo. II, c. 28, did not extend to it. 33 Strange, contra, insisted that it was discretionary in the justices, and cited Stephens v. Watson, 1 Salk. 45, that no appeal lies from the denial of a license, and if the owner be committed, the want of a license can only come in question, and not the reason why it was denied. Et PER CURIAM. There never was an instance of such a mandamus, and therefore we will not grant it. 32 Disobedience to the writ of mandamus constitutes contempt of court, and is punishable by fine and imprisonment. Cyc. "Mandamus," p. 499. 33 "It was said by Mr. Nares in the case of Rex. v. Young and Pitts, Esq., B. R. 20th April, 1758, that the sole reason why the justices of the peace refused the license in this case was because Giles had signed a petition to erect a workhouse, and though the refusal was so ill founded, yet the mandamus was denied. MSS. See, also, the report of that case. 1 Burr, 556. (Note by Reporter.) FR.ADM. LAW-28 KING v. BISHOP OF LITCHFIELD. (Court of King's Bench, 1734. 7 Mod. 217.) Mandamus to Bishop to license a person elected usher to a grammar school. Lord HARDWICKE, Chief Justice.34 * * If the bishop here acts judicially, a mandamus lies not to compel him to grant a license, but only to determine the one way or the other; as we often grant them to give sentence, generally, without directing them what sentence to give, so to give judgment in inferior courts; but if he acts ministerially, and it appears to us that the person applying for a mandamus is qualified for the office he prays to be admitted to, then a mandamus goes requiring his admission. I should doubt whether he acts in a judicial capacity in this place. * * * 35 KENDALL v. UNITED STATES ex rel. STOKES. (Supreme Court of United States, 1838. 12 Pet. 524, 9 L. Ed. 1181.) Error to the Circuit Court of the District of Columbia. The Circuit Court had ordered a peremptory mandamus, to be directed against the Postmaster General, to be issued. The Postmaster General prosecuted this writ of error. THOMPSON, Justice, delivered the opinion of the court.36 This case comes up on a writ of error from the Circuit Court of the United States for the District of Columbia, sitting for the county of Washington. This case was brought before the court below by petition setting out certain contracts made between the relators and the late Postmaster General, upon which they claimed certain credits and allowances upon their contracts for the transportation of the mail: that credits and allowances were duly made by the late Postmaster General; that the present Postmaster General, when he came into office, re-examined the contracts entered into with his predecessor, and the allowances made by him, and the credits and payments which had been made, and directed that the allowances and credits should be withdrawn, and the relators recharged with divers payments they had received; that the relators presented a memorial to Congress on the subject, upon which a law was passed on the 21st of July, 1836, for their relief, by which the Solicitor of the Treasury was authorized and directed to settle and adjust the claims of the relators for extra services performed by them, to inquire into and determine the equity 34 Only a portion of the opinion by Lord Hardwicke is printed. 35 See Rex v. Askew, 4 Burr. 2189 (1768); Rex v. Archbishop of Canterbury, 15 East, 142 (1812). 36 Only a portion of this case is here printed. |