Kimberly v. Morris

31 S.W. 808, 87 Tex. 637, 1895 Tex. LEXIS 402

• Court: Texas Supreme Court
• Decided: April 11, 1895
• Docket: No. 277.
• Status: Published

Opinion

GAINES, Chiee Justice.

The statute referred to in the question certified makes it the duty of the Commissioners Court of a county to order an election upon the petition of 250 voters of the county. It confers upon the voters so petitioning a clear legal right to have the election ordered; and if the court upon its refusal to make the order can not be compelled by mandamus, it leaves them without a remedy for the enforcement of the right. It is a matter in which, from its nature, the petitioners can not have a pecuniary interest; but since the law expressly confers the right to demand the election, it can not be said that it does not recognize in them an interest for the enforcement. It was not contemplated, as we think, that they should be left without a remedy, or with a remedy dependent solely upon the will of the State’s official attorney.

After stating that it is clear that in England a writ of mandamus to compel the performance of a public duty may be issued at the instance of a private relator, the Supreme Court of the Hnited States sa y: There is, we think, a decided preponderance of American authority in favor of the doctrine that private persons may move for a mandamus to enforce a public duty not due to the government as such, without the intervention of the government law officer.” Strong, J., in Railway v. Hall, 91 U. S., 343, citing People v. Collins, 19 Wend., 56; Pike County v. The State, 11 Ill., 202; Ottawa v. The People, 48 Ill., 233; Hamilton v. The State, 3 Ind., 452; The People v. Halsey, 37 N. Y., 344; Iowa v. Judge, 7 Iowa, 186; The State v. Rahway, 33 N. J. L., 110; Watts v. Police Jury, 11 La. Ann., 141; 2 Dill. Mun. Corp., sec. 865; High Ex. Rem., secs. 431, 432; Cannon v. Janvier, 3 Hous. (Del.), 27. The following cases support the same doctrine: The State v. Brown, 38 Ohio St., 344; The State v. Francis, 95 Mo., 44; Attorney- General v. Boston, 123 Mass., 460; Scott v. County Commissioners, 17 Fla., 707; McConihe v. The State, 17 Fla., 238; Chumasero v. Potts, 2 Mont., 242; The State v. Van Duyn, 24 Neb., 586; The State v. Ware, 13 Ore., 380; Wise v. Bigger, 79 Va., 269; The People v. Board of Education, 127 Ill., 613; The State v. Gracey, 11 Nev., 223; Hyatt v. Allen, 54 Cal., 353; The Board v. The State, 61 Ind., 75; Moses v. Kearney, 31 Ark., 261; The State v. City Council, 39 N. J. L., 620.

There seems to be some conflicting decisions; but we do not find it necessary to decide the broad question in order to determine the point before us. Since the statute gives the requisite number of voters the right to demand an election by a petition, we think any one or more of the petitioners entitled to a writ of mandamus if .necessary in order to compel the performance of the duty.

The proceedings for the writ of mandamus are usually instituted in the name of the State; but when they are prosecuted in behalf of a private relator, this is a mere matter of form. The private relator is the real party, and it accords with the genius of our system of jurisprudence that the suit should proceed in his name. Such we think has been recognized as good practice in our courts from an early day. Land Commissioners v. Bell, Dall., 366; Glasscock v. Commissioner, etc., 3 Texas, 51; Cullem v. Latimer, 4 Texas, 329; Arberry v. Beavers, 6 Texas, 457; Sansom v. Mercer, 68 Texas, 488; Brown v. Ruse, 69 Texas, 589; Smith v. McGaughey, 87 Texas, 61. We therefore answer the second question in the negative.

Delivered April 11, 1895.