Mr. Justice Bean,
after stating the facts, delivered the opinion of the court.
[381] In support of the demurrer it is contended that there is a defect of parties defendant, because the owner of the warrant, the payment of which is sought to be enjoined, is not a party to the suit. If this is true, and the objection had been properly taken, it would have been fatal. The rule undoubtedly is that the owner of a state or county warrant is a necessary party to a suit to enjoin its payment, and in some instances the courts, deeming him an indispensable party, refuse to proceed to a final determination of such a suit until he is brought in, although the parties to the record make no objection on that account, or even consent to proceed without him: City of Anthony v. State, 49 Kan. 246 (30 Pac. 488; Buie v. Cunningham (Tex. Civ. App.), 29 S. W. 801; King v. Commissioners’ Court (Tex. Civ. App.), 30 S. W. 257; State v. Anderson, 5 Kan. 90; Graham v. City of Minneapolis, 40 Minn. 436 (42 N. W. 291); Ship Channel Company v. Bruly, 45 Tex. 6; Board v. Texas, etc., Railway Company, 46 Tex. 316. But in this case, while it is not apparent, from the face of the information, to whom the warrant was issued, or by whom it was owned at the time the suit was brought, the undertaking and order for a preliminary injunction and the decree appealed from all state that it was issued to the present defendant; so that the court would hardly be justified in holding that it affirmatively appears there is a defect of parties.
But, however this may be, the demurrer itself is insufficient, both in form and substance, to raise the question. The statute provides that objections apparent upon the face of the complaint, other than [382] such as go to the jurisdiction of the court and that it does not state facts sufficient to constitute a cause of action or suit, are waived, unless taken by demurrer (Hill’s Ann. Laws, § 71), and that a demurrer shall be disregarded unless it distinctly specifies the grounds of objection (Hill’s Ann. Laws, § 68). At common law a demurrer for want of necessary parties defendant was required to point out, either by name or in some other definite way, from the facts stated in the bill, those who should have been, and who were not, made parties to the suit, so as to enable the plaintiff to obviate the objection by bringing them in (Story’s Equity Pleading, § 543; Dias v. Bouchaud, 10 Paige, 445); and this rule has not been abrogated by the provisions of the code: 1 Rumsey’s Practice, § 383;' 1 Van Santvoord’s Pleadings, 75; Durham v. Bischof, 47 Ind. 211; Dewey v. State, 91 Ind. 173; Baker v. Hawkins, 29 Wis. 576; Kent v. Snyder, 30 Cal. 666; Irvine v. Wood, 7 Colo. 477 (4 Pac. 783). Now, the language of the demurrer in this case is “that there is a defect of parties plaintiff and defendant,” and this, as we have seen, is insufficient; so that the question is not raised by the demurrer, nor can the case be classed with those in which the courts have refused to proceed to the determination of a suit to enjoin the payment of a state or county warrant without the owner or holder thereof being a party to the suit. As already suggested, the record indicates that the warrant in question was issued to the defendant, and, if so, there is no defect of parties: Dorothy v. Pierce, 27 Or. 373 (41 Pac. 668). But, whether it was or not, the questions involved do not depend upon [383] converted facts for their solution, but are questions of law, which have been ably and exhaustively argued, and can be determined on this appeal without affecting the interests of the warrant holder, should he prove to be other than the defendant, except so far as the doctrine of stare decisis may apply to any future proceeding which may be instituted by him to enforce its payment. The demurrer for want of proper parties was, therefore, properly overruled; and if, by reason of the facts, the warrant holder should have been made a party to the suit, either on his own account or as a protection to the defendant, it should have been made apparent by answer, and, if necessary, the court could have stayed the proceedings until he could be brought in.
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Mr. Justice Bean,
after stating the facts, delivered the opinion of the court.
[381] In support of the demurrer it is contended that there is a defect of parties defendant, because the owner of the warrant, the payment of which is sought to be enjoined, is not a party to the suit. If this is true, and the objection had been properly taken, it would have been fatal. The rule undoubtedly is that the owner of a state or county warrant is a necessary party to a suit to enjoin its payment, and in some instances the courts, deeming him an indispensable party, refuse to proceed to a final determination of such a suit until he is brought in, although the parties to the record make no objection on that account, or even consent to proceed without him: City of Anthony v. State, 49 Kan. 246 (30 Pac. 488; Buie v. Cunningham (Tex. Civ. App.), 29 S. W. 801; King v. Commissioners’ Court (Tex. Civ. App.), 30 S. W. 257; State v. Anderson, 5 Kan. 90; Graham v. City of Minneapolis, 40 Minn. 436 (42 N. W. 291); Ship Channel Company v. Bruly, 45 Tex. 6; Board v. Texas, etc., Railway Company, 46 Tex. 316. But in this case, while it is not apparent, from the face of the information, to whom the warrant was issued, or by whom it was owned at the time the suit was brought, the undertaking and order for a preliminary injunction and the decree appealed from all state that it was issued to the present defendant; so that the court would hardly be justified in holding that it affirmatively appears there is a defect of parties.
But, however this may be, the demurrer itself is insufficient, both in form and substance, to raise the question. The statute provides that objections apparent upon the face of the complaint, other than [382] such as go to the jurisdiction of the court and that it does not state facts sufficient to constitute a cause of action or suit, are waived, unless taken by demurrer (Hill’s Ann. Laws, § 71), and that a demurrer shall be disregarded unless it distinctly specifies the grounds of objection (Hill’s Ann. Laws, § 68). At common law a demurrer for want of necessary parties defendant was required to point out, either by name or in some other definite way, from the facts stated in the bill, those who should have been, and who were not, made parties to the suit, so as to enable the plaintiff to obviate the objection by bringing them in (Story’s Equity Pleading, § 543; Dias v. Bouchaud, 10 Paige, 445); and this rule has not been abrogated by the provisions of the code: 1 Rumsey’s Practice, § 383;' 1 Van Santvoord’s Pleadings, 75; Durham v. Bischof, 47 Ind. 211; Dewey v. State, 91 Ind. 173; Baker v. Hawkins, 29 Wis. 576; Kent v. Snyder, 30 Cal. 666; Irvine v. Wood, 7 Colo. 477 (4 Pac. 783). Now, the language of the demurrer in this case is “that there is a defect of parties plaintiff and defendant,” and this, as we have seen, is insufficient; so that the question is not raised by the demurrer, nor can the case be classed with those in which the courts have refused to proceed to the determination of a suit to enjoin the payment of a state or county warrant without the owner or holder thereof being a party to the suit. As already suggested, the record indicates that the warrant in question was issued to the defendant, and, if so, there is no defect of parties: Dorothy v. Pierce, 27 Or. 373 (41 Pac. 668). But, whether it was or not, the questions involved do not depend upon [383] converted facts for their solution, but are questions of law, which have been ably and exhaustively argued, and can be determined on this appeal without affecting the interests of the warrant holder, should he prove to be other than the defendant, except so far as the doctrine of stare decisis may apply to any future proceeding which may be instituted by him to enforce its payment. The demurrer for want of proper parties was, therefore, properly overruled; and if, by reason of the facts, the warrant holder should have been made a party to the suit, either on his own account or as a protection to the defendant, it should have been made apparent by answer, and, if necessary, the court could have stayed the proceedings until he could be brought in.
It is next contended that the information does not state facts sufficient to authorize a court of equity to interfere by injunction to restrain the payment of the warrant in question, for the reason that it does not appear that the state would be pecuniarily injured or damaged by the construction of an insane asylum in Eastern Oregon, instead of at the seat of government. The question as to when and by whom a suit can be maintained to prevent the construction of public buildings at a place other than the seat of government has been before this court several times, and it has been held that a private individual cannot do so without showing some special injury to himself (Sherman v. Bellows, 24 Or. 553, 34 Pac. 549), and that the same rule applies when a suit is instituted in the name of the state upon his relation: State v. Pennoyer, 26 Or. 205 (25 L. R. A. 862, 37 Pac. 906, and 41 Pac. 1104); [384] State ex rel. v. Lord, 28 Or. 498 (43 Pac. 471). But these cases are not in point in the present controversy* The one first referred to was a suit instituted by a private citizen in his individual capacity, without showing any special injury to himself; and the other was a proceeding against the board of commissioners of public buildings by a private citizen, who undertook to use the name of the state without authority, and was decided on the ground that it was not brought by nor against the proper parties. But this is a suit by the state in its sovereign capacity, as the guardian of the rights of the people, instituted by its executive law officer, and can, in our opinion, be maintained without showing any special injury to the state. It is (nough that the public funds are about to be applied in a manner prohibited by the constitution. At common law the attorney-general of England could, by information in the name of the crown, call upon the courts of justice to prevent the misapplication of funds or property raised or held for public use, and, in the absence of statutory regulations, the district attorney in this state is vested with like powers: State v. Douglas County Road Company, 10 Or. 198; Dollar Savings Bank v. United States, 86 U. S. (19 Wall.) 239. Indeed, the right of the state, through its proper officer, to maintain such a proceeding, would seem to be one of the necessary incidents of sovereignty. Without it the rights of the citizen cannot be protected or enforced in cases where he is unable to act for himself. In a suit by an individual he is required to show some special injury to himself; and when, as in this case, the' wrong complained of is public in its [385] character, affecting no one citizen more than another, it is impossible for him to do so, and for that reason he is without remedy, although he may be injured in common with the other members of the community. In such cases the state has a right, by virtue of its high prerogative power, to call upon the courts; through its proper law officer, to protect the rights of its people. And to support a proceeding for that purpose it is sufficient that the grievance complained of is a threatened invasion of the right of the people to determine what disposition shall be made of the public funds exacted from them by the extraordinary power of taxation. Now, every use of such funds in violation of the provisions of the constitution or organic law must necessarily be of this character. The legislature is but an instrumentality appointed by the state to exercise a part of its sovereign powers» In that capacity it holds the public funds in trust for the people. Except as limited by the constitution, its action within its legitimate sphere is the action of the people; but, when it undertakes to apply such funds in a manner or at a place prohibited by the organic aw, it is not only exercising a power expressly withheld, but violating its trust, and a court of equity will interfere at the suit of the sovereign power to prevent or restrain such an application without being required to show any other injury. It is enough that the threatened disposition is in violation of the will of the people, as expressed in the supreme law of the land.
There are some dicta in paragraph 7 of the opinion in the case of State ex rel. v. Lord, 28 Or. 498 (43 Pac. 471), in which the writer thereof did not concur, ap[386] parently in conflict with this doctrine; but it was not necessary to a decision of the case, and, after more mature reflection, we are now all agreed that it was erroneous. It is based upon the falso premises (1) that the location and construction of an asylum at some place other than the seat of government is not a misapplication of the public funds, unless it appears that the burden of taxation will be increased by so doing; and (2) that the location of such an institution is a legislative question. Manifestly, neither of these positions is sound. The expenditure of public money at a place prohibited by the constitution is a misapplication thereof, for the simple and very satisfactory reason that it is against the declared will of the people; and the location of a public institution, within the meaning of that term as used in the constitution, is not in any sense a legislative question, but has been determined by the people themselves. A sufficient injury, therefore, to enable the state in its sovereign capacity to call upon a court of equity for relief is shown whenever it is made to appear that public funds are about to be applied to a use, for a purpose, or at a place prohibited by the constitution. We conclude, therefore, that the court has jurisdiction.
The only remaining question is whether the act of the legislature authorizing the construction of an insane asylum in Eastern Oregon is in violation of the provisions of the constitution. By article XIV, section 1 of that instrument, it is provided that the legislature shall not have the power to establish a seat of government, but that such question shall be submitted to and determined by the people at the [387] polls. And section 3 of the same article declares that when the seat of government is so established, it shall “ not be removed for the. term of 20 years from the time of such establishment, nor in any other manner than as provided in the first section of this article; provided, that' all the public institutions of the state, hereafter provided for by the legislative assembly, shall be located at the seat of government.” Although the language of the section quoted is somewhat involved, the evident intention of the framers of the constitution, and of the people when they adopted it, was to declare that all the public institutions of the state thereafter provided for by the legislature should be located at the seat of government. It amounts to and is, in effect, a constitutional location of such institutions, and the only power vested in the legislature is to determine the necessity for and the amount of money to be used in their construction and maintenance. Any attempt by that body to expend the public revenue for the erection or maintenance of such an institution elsewhere is a mere nullity, and of no more force or validity than a legislative attempt to change the seat of government. All such institutions must be located at the place designated in the constitution, although it may now seem desirable to do otherwise, until the consent of the people is obtained in the form of a constitutional amendment. In their sovereign capacity the people have so provided, and no other power can alter or change their decree.
That an insane asylum is a public institution of the state, within the meaning of the constitution, is [388] too clear for argument. In view of the practical construction of that instrument by the legislative and'executive department for almost if not quite a quarter of a century, as evidenced by the erection of educational institutions away from the seat of government, it no doubt should now be construed so as to include only such institutions as are; strictly governmental in their character. But an asylum for the insane comes clearly within this construction. When, therefore, the legislature assumed to authorize the expenditure of the public funds for the erection of such an institution in Eastern Oregon, it attempted to exercise a power expressly withheld by the people, and an injury to the state will be conclusively presumed from a threatened application of the public funds to such a purpose. It follows that the decree of the court below must be affirmed, and it is so ordered.
Decided August, 1898.
Affirmed.