O'Brien v. Members of Bd. of Aldermen of City of Pawtucket

• Decision Date: 28 December 1892
• Citation: 25 A. 914,18 R.I. 113
• Parties: O'BRIEN et al. v. MEMBERS OF BOARD OF ALDERMEN OF CITY OF PAWTUCKET.
• Court: Rhode Island Supreme Court

25 A. 914

18 R.I. 113

O'BRIEN et al.

v. MEMBERS OF BOARD OF ALDERMEN OF CITY OF PAWTUCKET.

Supreme Court of Rhode Island.

Dec. 28, 1892.

Mandamus at the relation of Edward O'Brien and others against the board of aldermen of Pawtucket. To the petition, respondents demur. Demurrer sustained.

Claude J. Farnsworth and Thomas W. Robinson, for petitioners.

Arnold Green, Thomas P. Barneheld, and James L. Jenks, for respondents.

STINESS, J. The petitioners represent that they are citizens of Pawtucket, and candidates for office in the Second ward of said city, duly nominated according to the provisions of Pub. St. R. I. c. 894, of June 18, 1890, commonly called the "Municipal Ballot Reform Law;" that at the municipal election held November 8, 1892, there was no choice, and another election was ordered for December 8, 1892, at which, also, there was no choice; that a third election was then ordered for the first Wednesday in April next, the date of the annual state election; that the time thus appointed, in view of the fact that the new city government is inducted into office on the first Monday in January next, is an unreasonable, vexatious, and illegal postponement of said election, and they ask for a mandamus upon the respondents to order a new election at a time to be fixed by this court. To this petition the respondents demur, claiming, among other things, that the petition, being simply a private and individual petition, is not in proper form. Mandamus was originally a prerogative writ, issuing only in the name of the king; but in modern times it has been treated as a writ of right to enforce a duty, whether public or private. Consequently, where some private or personal right only is involved, the practice has grown up, both here and elsewhere, of allowing the parties having the peculiar interest to petition in their own names. But where applicants have only an interest in common with the rest of the public, and seek the enforcement of a purely public right, the question is now raised whether they can proceed by a private petition, as in this case. There are many cases in which it has been stated that, where the question is one of public right, the people are regarded as the real party, and the relator need not show any legal or special interest in the result; that it is enough that he, as a citizen, is interested in having the laws enforced. County of Pike v. State, 11 Ill 202; City of Ottawa v. People, 48 Ill. 233; Hamilton v. State, 3 Ind. 452; People v. Collins, 19 Wend. 56; People v. Halsey, 37 N. Y. 344. These cases hold that any citizen may be a relator. But it is to be observed that in all these cases the proceeding is in the name of the state upon the relation of the citizen. If the doctrine of these cases is that the use of the name of the state is purely formal, and that the intervention of a public officer is not necessary, and we were to adopt that doctrine, we should have no hesitation in sustaining the present petition; because, if the citizen has the right to use the name of the state upon his own relation, it is not substantially different from proceeding upon a petition in his own name. In Stone Ware Co. v. Taylor, 17 R. I. 33, 19 Atl. Rep. 1086, it was held that a creditor was a proper applicant for the writ against a treasurer who had been ordered to pay the petitioner's bill, and, although the form of proceeding was not then questioned, and the petitioner had a special interest, most of the cases cited above were referred to as examples of the extent to which some courts had gone in holding that the applicant need not show a special interest, even in seeking the performance of a public duty. In Sanger v. Commissioners, 25 Me. 291, it is laid down that a private individual can apply for mandamus only where he has some private or particular interest to be subserved, or some particular right to be pursued or protected, independent of that which he holds in common with the public at large; and that it is for public officers exclusively to apply for the writ where public rights only are to be subserved. The same rule was held in Heffner v. Com., 28 Pa. St. 108; People v. Regents of University of Michigan, 4 Mich. 98,—with a...