People ex rel. Stonebraker v. Wood
| Decision Date | 04 April 1932 |
| Docket Number | 13060. |
| Citation | 90 Colo. 506,10 P.2d 331 |
| Parties | PEOPLE ex rel. STONEBRAKER v. WOOD, Mayor, et al. |
| Court | Colorado Supreme Court |
Error to District Court, Las Animas County; A. F. Hollenbeck Judge.
Mandamus by the People, on the relation of L. L. Stonebraker, against F. R. Wood, as Mayor of the City of Trinidad, and Ralph Cupelli and others, comprising the City Council, to force the city to remove obstructions from its streets and sidewalks. To review the judgment dismissing the suit, relator brings error.
Reversed and remanded.
George H. Blickhahn, of Walsenburg, for plaintiff in error.
Gilbert Sanders, of Trinidad, for defendants in error.
Plaintiff in error is hereinafter referred to as relator, and defendant in error as the city. Relator brought this action in mandamus to force the city to remove unlawful obstructions from its streets and sidewalks. The alternative writ was issued, and the city demurred thereto. That demurrer was sustained for want of capacity to sue, defect of parties, and misjoinder of actions. Relator elected to stand, and the suit was dismissed at his costs. To review that judgment he brings error.
The alleged obstructions are thirty gasoline pumps, whose locations and operators are mentioned in the writ, all of which are alleged to be in city streets and on city sidewalks and which unlawfully obstruct the full use thereof by the public. The city contends: (1) That the action could only be brought by the public prosecutor; (2) that the operators of the pumps are necessary parties; (3) that the location and operation of each pump is the basis for a separate suit.
1. This complaint was entitled, in the trial court, 'The People of the State of Colorado, on the relation of L. L. Stonbraker, Relator, vs. etc.' Much confusion has arisen concerning the proper plaintiff and his representative in a mandamus action to compel the performance of a public duty, and the several jurisdictions are in hopeless conflict. 18 R.C.L. §§ 271, 272, p. 322.
The general rule now seems to be that: 'Private persons may move for a mandamus, to enforce a public duty not due to the government as such, without the intervention of the government law officer.' Id. § 273, p. 325; Union Pac. R. Co. v. Hall et al., 91 U.S. 343, 23 L.Ed. 428.
There is, however, good authority to the contrary. 18 R.C.L. § 274 p. 326.
Indicating our approval of the general rule we have said: 'If the main object of the proceedings is to vindicate a public right, * * * a citizen interested could probably institute the proceeding in the name of the people without consulting the attorney general.' Wheeler v. Northern Colo. Irr. Co., 9 Colo. 248, 256, 11 P. 103, 107.
That was an original application in this court. The statement would certainly be equally true where the suit was in the district court and the official in question was the district attorney. The rule has been restated by our Court of Appeals in one such case, and applied by it in two others. Chapman v. People ex rel., 9 Colo. App. 268, 270, 48 P. 153; Rizer et al. v. People ex rel., 18 Colo.App. 40, 48, 69 P. 315; Colo. City et al. v. Worley, 23 Colo.App. 456, 460, 130 P. 826.
It has been applied in Illinois in a case where the facts were practically identical with those here alleged. People ex rel. v. Harris et al., 203 Ill. 272, 67 N.E. 785, 96 Am.St.Rep. 304.
We think plaintiff had capacity to sue.
2. It is said each pump operator should have been made a party. Perhaps plaintiff might have proceeded against them individually, but he elected otherwise. The city is authorized to establish and improve streets and sidewalks and prevent and remove obstructions therefrom. Section 8987, p. 2290, par. 7, C. L. 1921.
The execution of this power may be required as a public duty. High's Extraordinary Legal Remedies (3d Ed.) § 414, p. 406.
Under the facts here alleged, with certain exceptions, the duty has been violated, and mandamus is the proper remedy. 42 C. J. § 1210, p. 1305.
In such a case, these pump operators are proper parties, but neither indispensible nor...
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