Cooperrider v. State ex rel. Stevens

• Decision Date: 01 October 1895
• Citation: 64 N.W. 372,46 Neb. 84
• Parties: COOPERRIDER ET AL. v. STATE EX REL. STEVENS ET AL.
• Court: Nebraska Supreme Court

46 Neb. 84

64 N.W. 372

COOPERRIDER ET AL.

v.STATE EX REL. STEVENS ET AL.

Supreme Court of Nebraska.

Oct. 1, 1895.

Syllabus by the Court.

1. Van Horn v. State, 64 N. W. 365, reaffirmed.

2. In an action for a mandamus to compel the performance of a duty imposed upon the governing body of a corporation, such as a county board, it is proper to name as respondents, and direct the writ against, the individuals holding the offices in their official capacity.

3. Members of the board may, in such case, be relators, and when they are such there is no defect of parties if all the members of the board who are not relators are made respondents.

4. Where a peremptory writ of mandamus has been awarded, the allowance of a supersedeas rests within the judicial discretion of the trial court.

Error to district court, Adams county; Beall, Judge.

Application by the state, on the relation of William H. Stevens and others, for mandamus to Thomas J. Cooperrider and others. From an order allowing the writ, defendants bring error. Affirmed.Capps & Stevens, for plaintiffs in error.

W. P. McCreary, for defendants in error.

IRVINE, C.

The relators applied to the district court of Adams county for a writ of mandamus to compel the respondents, as members of the board of supervisors, to convene, and divide the county into supervisor districts, and select supervisors, according to the provisions of Sess. Laws 1895, c. 28. The district court allowed the writ, and the respondents prosecute error.

The case, on its merits, presents the same questions as are decided in Van Horn v. State, 64 N. W. 365, and the same reasons control its decision. In this case there are, however, certain assignments of error relating to the form of the proceedings. These require separate notice. The relators in this case are themselves members of the board of supervisors. The respondents are the remaining members of the board. The prayer is for a writ compelling the respondents to convene with the relators and act. This is also the form of both alternative and peremptory writs. It is contended that in such a case the proper respondent is the corporation, as such; in other words, that the writ should run, not against individuals composing the board of supervisors, but against the board of supervisors, by that name. In State v. Railway Co., 43 Neb. 830, 62 N. W. 225, it was said that “where the act is a duty incumbent on a corporation the writ may, according to circumstances, be directed to the corporation itself, to the select body of officers whose duty it is to perform the act, or to the corporation and that body jointly.” An examination of the cases convinces us that, according to the great weight of modern authority, the form of the writ, as to the respondents, is not very material. It has been held that a writ directed against a municipal corporation in its corporate name, or against the council without naming its members, is sufficient. Council of Glencoe v. People, 78 Ill. 382;City of Chicago v. Sansum, 87 Ill. 182; Fisher v. City of Charleston, 17 W. Va. 595; Wren v. City of Indianapolis, 96 Ind. 206;State v. City of Milwaukee, 25 Wis. 122. On the other hand, it has been held a proper--and, indeed, a preferable--practice to direct the writ against the individuals holding the office. Hollister v. Judges, 8 Ohio St. 201; City Council v. Hickman, 57 Ala. 338; Com. v. City of Pittsburgh, 34 Pa. St. 496; County Court v. Sparks, 10 Mo. 117. In City of Louisville v. Kean, 18 B. Mon. 9, a proceeding against the individuals was treated as one against the corporation, and the corporation allowed to appeal. In People v. Brinkerhoff, 68 N. Y. 259, it was said that the writ should have been directed to the board of supervisors, but that it was not error to direct it to the chairman and clerk alone, they being particularly charged with the duty. It would seem, too, from some of the cases, that courts have regarded it essential to the enforcement of the writ by attachment that the peremptory writ should run against the individuals, and be served upon them. But for this purpose they have issued the peremptory writ in that form, although the alternative writ was directed to the corporate body. People v. Champion, 16 Johns. 61; Wren v. City of Indianapolis, supra; State v. City of Milwaukee, supra. Even the English courts of the last century were inclined to disregard technical defects in regard to naming of the respondents in the writ. Pees v. Mayor, etc., 1 Strange, 640. It is the doctrine of the supreme court of the United States that a writ may be directed either to a city, by its corporate name, or to the mayor and aldermen, if it appear that these officers are the governing body. Mayor, etc., v. Lord, 9 Wall. 409. In such cases the service of the writ seems to be more important than its form. But we think the better practice is to name as respondents, and direct the writ against, the individuals holding the office, in their official capacity.

It is contended, also, that the relators, being members of the board, have no legal capacity to sue. The duty which it is sought to enforce is a...