People ex rel. Byers v. Grand River Bridge Co.

• Decision Date: 24 May 1889
• Citation: 13 Colo. 11,21 P. 898
• Parties: PEOPLE ex rel. BYERS v. GRAND RIVER BRIDGE CO. et al.
• Court: Colorado Supreme Court

21 P. 898

13 Colo. 11

PEOPLE ex rel. BYERS v. GRAND RIVER BRIDGE CO. et al.

Supreme Court of Colorado

May 24, 1889

Appeal from district court, Clear Creek county.

This proceeding was instituted under section 315 of the Civil Code of 1883, in the name of the people, upon the relation of Frank S. Byers, for the purpose of procuring a dissolution of the defendant corporation. The facts alleged are similar to those stated in the case of Byers v. Rollins, ante, 894 (decided at this term.) The court below sustained a demurrer to the complaint, and entered judgment for the defendant, and the plaintiff brings the case here for review by appeal. The section of the Code referred to is as follows: 'An action may be brought by the district attorney in the name of the people of this state, upon his own information, or upon the relation and complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within his district in the state, and it shall be the duty of the district attorney to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor and, in case such district attorney shall neglect or refuse to bring such action upon the complaint of a private party such action may be brought by such private party upon his own relation, in the name of the people of the state.'

W. T. Hughes, for appellant.

R H. Gilmore, for appellees.

HAYT J., ( after stating the facts as above.)

It is averred in the complaint that the district attorney of the proper district refused to bring the suit upon application and, therefore, plaintiff claims the right to maintain the action as relator by virtue of the provisions of section 315 of the Civil Code, although it does not appear that he has any other of different interest in the result than such as he may have in common with all other citizens of the state. If the defendant corporation has violated the law, either by doing some forbidden act or by neglecting to do some act enjoined upon it, it is not every person who may call it to account for such violation. As a general rule, prosecutions for wrongs done to the public must be instituted by the state through its property authorized agents, while the individual can only sue for injuries peculiarly affecting him; and the provision of the Code permitting an action in the nature of a quo warranto to be brought by a purely private party, upon the neglect or refusal of the district attorney to bring such action, must be construed with reference to this general rule. In considering the nature of the interest necessary to entitle a private party to become a relator, in a case coming before the court while MANSFIELD was lord chief justice, it is said: 'There is no individual, among those who apply to the court at present, who says, 'My franchise is hurt.' 'Who are you? what concern have you with the corporation?' 'Only one of the king's subjects; I have no concern.' 'What do you come for?' 'To dissolve the corporation, and to disturb its peace.' 'Then what is to be taken...