Mr. Justice Bean
delivered the opinion of the court.
1, 2. The first point made by the defendant is that the alternative writ of ma/ndamus shows on its fact that the State of Oregon has no interest in the result of this action; and that the relators have no right to prosecute the action in the name of the state. At a meeting of the state land board on November 13, 1913, two of the relators, being a majority of the members of the state land board, passed an order directing that the Treasurer deliver to G. G. Brown, clerk of the [272]*272board, the securities mentioned. It was unanimously instructed by tbe board that the district attorney bring proceedings to enforce tbe order. Pursuant to this request, tbe district attorney for Marion County instituted these proceedings. The petition, however, is not signed by him in his official capacity. This, however, we consider as an informality which was waived, in view of the fact thát defendant answered to the merits: Section 72, L. O. L.; State v. Chadwick, 10 Or. 423; Rutenic v. Hamakar, 40 Or. 444, 454 (67 Pac. 196). This leaves the question as to the sufficiency of facts to constitute a cause of action and the jurisdiction of the court. Whether the law directs the action sought by the writ is the real question. It must be conceded that this is a public matter; that the state is vitally interested in the proper and legal transaction of all the business relating to the irreducible school fund and other-funds referred to which are held by the state for a most beneficial purpose, and which should be sacredly guarded and cared for. In order that no danger of loss or impairment of said funds should be suffered to exist, no legal questions arising in regard thereto should be lightly brushed aside.
Section 614, L. O. L., provides that the writ should bo allowed upon petition of the party beneficially interested: See State ex rel. v. Ware, 13 Or. 380, 383 (10 Pac. 885); State ex rel. v. Grace, 20 Or. 154, 157 (25 Pac. 382, 383); State ex rel. v. Lord, 28 Or. 498 (43 Pac. 471, 31 L. R.A. 473); High on Ex. Remedies (3 ed.), § 431. In State v. Grace, 20 Or. 154, 157 (25 Pac. 382, 383), it was remarked by this court:
“While the authorities indicate some diversity of judicial opinion upon the question whether private persons can sue out the writ to enforce the performance of a public duty, unless its neglect entails some special [273]*273injury or affects some particular interest, the decided preponderance of American authority, Mr. Justice Miller thinks, is ‘in favor of the doctrine that a private person may move for a mandamus to enforce a public duty not due to the government as such without the intervention of the government law officers.’ * * Hence, as the question at bar is one of public right, and the object of the mandamus is to enforce the performance of a public duty, the people being regarded as the real parties in interest, it is not necessary that the relators should show any special interest or particular right to be affected by the result.”
In the ease under consideration all the people of the state, in their collective capacity, constitute the real party in interest. The relators and the defendant are officers of the state, and in the inception of the controversy all apparently sought the aid of the court. It therefore becomes our duty to search the law to ascertain, if we can, who is the legal custodian of the securities named.
3. The first stone in the legal structure which it becomes necessary to examine is Article VIII, Section 5, of the Constitution of the state, which provides that the powers and duties of the board of commissioners for the sale of school and University lands and the investment of the funds arising therefrom shall be such as prescribed by law. Section 3882, L. O. L., enacts in part that “the Governor, Secretary of State, and State Treasurer are hereby made a board of commissioners for the sale of state lands, and for the investment of the funds arising therefrom, and shall be styled the ‘State Land Board.’ ” By Section 3883, L. O. L., it is provided that the state land board shall have power to appoint a clerk, who shall be known as the clerk of the state land board and keep his office in the state house. The section authorizes him to take [274]*274and certify the proof and acknowledgment of a conveyance of real property, or any other written instrument, keep the records, files and other papers pertaining to his office, attend all the meetings of the hoard, keep a record of the transactions, administer oaths, receive and file applications for the purchase of lands or loans of money, receive and file communications addressed to the board, conduct correspondence required by the board, and “receive, receipt for, and make immediate payment to the State Treasurer of all moneys received for the sale of lands, taking his receipt therefor, specifying the particular fund to which such moneys belong, and whether received as principal or interest, and to perform such other duties and acts as the board may direct.”
Section 3886, L. O. L., authorizes the state land board to make rules and regulations for the proper conduct of its business in conformity with the law. Therefore the efficiency of the order passed by the board depends upon whether or not it is in harmony with the statute or repugnant thereto. By an act passed in 1880 (Gren. Laws 1880, p. 11), in addition to the other duties enumerated, the clerk of the board of commissioners, as they were then styled, was to “receive, receipt for, and make immediate payment to the State Treasurer of all moneys of the state for the sale of lands (or payable to the board on any of the loans authorized by this act).” The clause inclosed in parenthesis remained in this statute until the act of 1907 (Laws 1907, p. 208), when it was eliminated. It also appears in the act of 1899 (B. & C., § 3296).
The powers and duties of the State Treasurer who is ex oficio a member of the state land board are such as may be prescribed by law: Article VI, Section 4, of the Constitution. ' Section 2636, L. O. L., provides [275]*275that the State Treasurer shall keep his office at the seat of government, shall receive and have charge of all moneys received and paid into the state treasury, and shall pay out the same as directed by law. Section 2637 specifies that the State Treasurer shall give a bond to the state in the sum of $50,000, conditioned, among other things, that he will deliver over to his successor in office, or to any other person authorized by law to receive the same, all moneys, books, papers, records and other articles and effects belonging to his office. Section 2658, L. O. L., makes provisions for an additional bond to be given by the State Treasurer. Section 2638 enumerates the general duties of the treasurer.
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Mr. Justice Bean
delivered the opinion of the court.
1, 2. The first point made by the defendant is that the alternative writ of ma/ndamus shows on its fact that the State of Oregon has no interest in the result of this action; and that the relators have no right to prosecute the action in the name of the state. At a meeting of the state land board on November 13, 1913, two of the relators, being a majority of the members of the state land board, passed an order directing that the Treasurer deliver to G. G. Brown, clerk of the [272]*272board, the securities mentioned. It was unanimously instructed by tbe board that the district attorney bring proceedings to enforce tbe order. Pursuant to this request, tbe district attorney for Marion County instituted these proceedings. The petition, however, is not signed by him in his official capacity. This, however, we consider as an informality which was waived, in view of the fact thát defendant answered to the merits: Section 72, L. O. L.; State v. Chadwick, 10 Or. 423; Rutenic v. Hamakar, 40 Or. 444, 454 (67 Pac. 196). This leaves the question as to the sufficiency of facts to constitute a cause of action and the jurisdiction of the court. Whether the law directs the action sought by the writ is the real question. It must be conceded that this is a public matter; that the state is vitally interested in the proper and legal transaction of all the business relating to the irreducible school fund and other-funds referred to which are held by the state for a most beneficial purpose, and which should be sacredly guarded and cared for. In order that no danger of loss or impairment of said funds should be suffered to exist, no legal questions arising in regard thereto should be lightly brushed aside.
Section 614, L. O. L., provides that the writ should bo allowed upon petition of the party beneficially interested: See State ex rel. v. Ware, 13 Or. 380, 383 (10 Pac. 885); State ex rel. v. Grace, 20 Or. 154, 157 (25 Pac. 382, 383); State ex rel. v. Lord, 28 Or. 498 (43 Pac. 471, 31 L. R.A. 473); High on Ex. Remedies (3 ed.), § 431. In State v. Grace, 20 Or. 154, 157 (25 Pac. 382, 383), it was remarked by this court:
“While the authorities indicate some diversity of judicial opinion upon the question whether private persons can sue out the writ to enforce the performance of a public duty, unless its neglect entails some special [273]*273injury or affects some particular interest, the decided preponderance of American authority, Mr. Justice Miller thinks, is ‘in favor of the doctrine that a private person may move for a mandamus to enforce a public duty not due to the government as such without the intervention of the government law officers.’ * * Hence, as the question at bar is one of public right, and the object of the mandamus is to enforce the performance of a public duty, the people being regarded as the real parties in interest, it is not necessary that the relators should show any special interest or particular right to be affected by the result.”
In the ease under consideration all the people of the state, in their collective capacity, constitute the real party in interest. The relators and the defendant are officers of the state, and in the inception of the controversy all apparently sought the aid of the court. It therefore becomes our duty to search the law to ascertain, if we can, who is the legal custodian of the securities named.
3. The first stone in the legal structure which it becomes necessary to examine is Article VIII, Section 5, of the Constitution of the state, which provides that the powers and duties of the board of commissioners for the sale of school and University lands and the investment of the funds arising therefrom shall be such as prescribed by law. Section 3882, L. O. L., enacts in part that “the Governor, Secretary of State, and State Treasurer are hereby made a board of commissioners for the sale of state lands, and for the investment of the funds arising therefrom, and shall be styled the ‘State Land Board.’ ” By Section 3883, L. O. L., it is provided that the state land board shall have power to appoint a clerk, who shall be known as the clerk of the state land board and keep his office in the state house. The section authorizes him to take [274]*274and certify the proof and acknowledgment of a conveyance of real property, or any other written instrument, keep the records, files and other papers pertaining to his office, attend all the meetings of the hoard, keep a record of the transactions, administer oaths, receive and file applications for the purchase of lands or loans of money, receive and file communications addressed to the board, conduct correspondence required by the board, and “receive, receipt for, and make immediate payment to the State Treasurer of all moneys received for the sale of lands, taking his receipt therefor, specifying the particular fund to which such moneys belong, and whether received as principal or interest, and to perform such other duties and acts as the board may direct.”
Section 3886, L. O. L., authorizes the state land board to make rules and regulations for the proper conduct of its business in conformity with the law. Therefore the efficiency of the order passed by the board depends upon whether or not it is in harmony with the statute or repugnant thereto. By an act passed in 1880 (Gren. Laws 1880, p. 11), in addition to the other duties enumerated, the clerk of the board of commissioners, as they were then styled, was to “receive, receipt for, and make immediate payment to the State Treasurer of all moneys of the state for the sale of lands (or payable to the board on any of the loans authorized by this act).” The clause inclosed in parenthesis remained in this statute until the act of 1907 (Laws 1907, p. 208), when it was eliminated. It also appears in the act of 1899 (B. & C., § 3296).
The powers and duties of the State Treasurer who is ex oficio a member of the state land board are such as may be prescribed by law: Article VI, Section 4, of the Constitution. ' Section 2636, L. O. L., provides [275]*275that the State Treasurer shall keep his office at the seat of government, shall receive and have charge of all moneys received and paid into the state treasury, and shall pay out the same as directed by law. Section 2637 specifies that the State Treasurer shall give a bond to the state in the sum of $50,000, conditioned, among other things, that he will deliver over to his successor in office, or to any other person authorized by law to receive the same, all moneys, books, papers, records and other articles and effects belonging to his office. Section 2658, L. O. L., makes provisions for an additional bond to be given by the State Treasurer. Section 2638 enumerates the general duties of the treasurer. They are, in effect, to keep the accounts of all moneys; to pay on demand out of the state treasury all sums authorized by law, etc.; to pay all warrants drawn on the treasury, etc.; to give receipts for all'moneys paid to him, etc.; to permit all books, papers, and transactions of his office to be open at all times to the inspection of the Governor, Secretary of State, the legislature, or any committee of either branch thereof, to examine the same; to deliver over to his successor in office all moneys, books, papers, furniture and other effects belonging to or preserved in his office; and to perform all other duties imposed upon him by law. Section 2654 directs, among other thinks, that:
“Nothing in this act shall be construed to deprive the state land board of the power to invest or dispose of the funds derived from the sale of public lands as is now or may be provided by law.”
By the Laws of 1913, Chapter 259, page 499, the state land board may require the State Treasurer to deposit in qualified state depositories any surplus of the funds [276]*276referred to, which are not loaned or invested in school district bonds.
By an act of the territorial legislature passed in January, 1856 (Laws of Oregon 1855-56, p. 69), it was provided that the superintendent of schoóls of each county should offer for sale the school lands in his respective county. Provision was made for the advertisement of sales, price and conditions of payment, to wit, one fourth of the purchase money in hand and the remainder to be secured by a note of the purchaser payable to the territorial treasurer for the use of the common school fund. Section 8 is as follows:
“It shall be the duty of any supertintendent of schools, within ten days after receiving any money, notes, or securities under the provisions of this act, to deposit the same with the territorial treasurer and file with the territorial auditor, duplicate receipts of all such deposits. ’ ’
It was provided by Section 9 of the act that it should be the duty of the territorial treasurer to loan any money belonging to the common school fund which might be in the territorial treasury, the loans to be secured by a mortgage on real estate. Section 10 authorized the superintendent of common schools of the respective counties to execute and deliver deeds of conveyance to purchasers of school lands when thereto entitled. It is contended by counsel for plaintiff that this territorial statute became obsolete upon the adoption of the state Constitution. However, when the Constitution became effective February 14, 1859 (Article XVIII, Section 7), all territorial laws then in force and consistent therewith' were by virtue of the article just cited, continued in force until altered or repealed.
It may therefore be stated that, beginning in 1856, the portion of the duties now devolving upon the state [277]*277land board in regard to tbe sale of school lands was imposed upon the several superintendents of schools in their respective counties. That part of the duties of the board relating to the loaning of the school funds was performed by the territorial treasurer, who was then the custodian of the notes and securities pertaining to the school funds. This is practically the only statutory signification that we find relating to this important trust. Under this law the ship of state sailed along without encountering any reefs or shoals of litigation in regard to who should be the custodian of these securities until A. D. 1914.
We have referred somewhat at length to the different statutes enacted since the state was admitted into the Union, not only for the purpose of ascertaining what the enactments are in this respect, but also to learn whether or not the legislature has seen fit to annul or change the custom relating to the care and custody of the securities mentioned, which came into vogue by virtue of the territorial law. This law is perfectly consistent with the Constitution, and, with the aid of the learned counsel upon both sides, we are unable to find that it has ever been altered or repealed in so far as the same relates to the custody of the notes and mortgages referred to. By virtue of the Constitution it is therefore in full force: Runyan v. Winstock, 55 Or. 202 (104 Pac. 417, 105 Pac. 895); Stevens v. Myers, 62 Or. 372 (121 Pac. 434, 126 Pac. 29). It is important to note that the clause in the act of 1880 authorizing the clerk of the state land board to receive and receipt for money payable to the board upon the securities in question was expressly repealed by the act of 1907 (Gen. Laws, 1907, p. 208), as under the act of 1880 there might be a necessity for the clerk of the board to have the custody of these documents [278]*278for convenience in collecting interest, etc. The strictly official duties of the State Treasurer, as such officer, as distinguished from his duties as ex officio a member of the state land board, are to a certain extent blended and cannot be entirely separated. In the absence of statutory authority therefor, the State Treasurer cannot he relieved of his official responsibility as custodian of the notes, mortgages and records described in the writ by delivering the same into the custody or entire control of the clerk of the hoard or any other officer. If any change is desired, the legislature is now in session, and can provide therefor, or remove any doubt that may exist.
No question relating to the collection, investment, or paying out of the funds or any dealings with third parties who are not officers of the state is involved in this proceeding. Neither is there any complaint as to any representative of the state being denied accéss to the securities and records involved.
4. In order to promote justice, the writ of mandamus may properly issue to compel the State Treasurer or other officer to perform an act which the law. specially enjoins, hut the writ will not lie unless the duty sought to be enforced is legally defined: Section 613, L. O. L.; Ball v. Lappius, 3 Or. 56; Mackin v. Portland Gas Co., 38 Or. 120 (61 Pac. 134, 62 Pac. 20, 49 L. R. A. 596); McGee v. Beckley, 54 Or. 253 (102 Pac. 303, 103 Pac. 61); First Nat. Bank of Topeka v. Heflebower, 58 Kan. 792 (51 Pac. 225); 26 Cyc. 151, 234.
The lower court erred in granting the peremptory writ, and the judgment is reversed and the writ dismissed. Reversed.