Portland Stone-Ware Co. v. Taylor

• Decision Date: 10 May 1890
• Citation: 17 R.I. 33,19 A. 1086
• Parties: PORTLAND STONE-WARE CO. v. TAYLOR, District Treasurer. SPRAGUE et al., District Council, v. SAME.
• Court: Rhode Island Supreme Court

19 A. 1086

17 R.I. 33

PORTLAND STONE-WARE CO.

v. TAYLOR, District Treasurer.

SPRAGUE et al., District Council,

v. SAME.

Supreme Court of Rhode Island.

May 10, 1890.

Petitions for mandamus by the Portland Stone-Ware Company against Esban S. Taylor, district treasurer of the district of Narragansett, and William Sprague and others, members of the district council of the district of Narragansett, against same.

James M. Ripley and John F. Lonsdale, for petitioners. James Tillinghast, for respondent.

STINESS, J. Two questions are presented in these cases: First, whether mandamus will lie; and, if so, second, upon which petition,—that of the members of the district council of Narragansett, or that of the creditor. It appears that authority was given to the district by Pub. Laws R. I. c. 726, of June 13, 1888, to borrow a sum not exceeding $100,000 to be used by said district for roads, sewerage, water-supply, fire purposes, and public buildings, and for no other purposes, under the direction of the district council; that the district duly authorized the district council to borrow the sum of $100,000 upon the bonds of the district, which has been done, and the proceeds have been deposited in the Wakefield National Bank, as a special deposit for the purpose aforesaid. In pursuance of the authority so given, the district council contracted with the Portland Stone-Ware Company for drain-pipe, to be used for the purpose of sewerage, and, after delivery, gave to said company two orders, directing the treasurer of the district to pay the bills thus incurred out of said fund, which is ample to meet said orders; but the treasurer refuses to pay said orders, whereupon these petitions for mandamus are filed. The respondent moves to dismiss both petitions, upon the ground that neither can be maintained. Upon this motion only the facts set forth in the petition are before us.

As to the question who is the proper party to petition for mandamus, the rule is well settled, as stated by BREESE, C. J., in City of Ottawa v. People, 48 Ill. 233, 240: "When the remedy is resorted to for the purpose of enforcing a private right, the person interested in having the right enforced must be the relator. The relator is considered the real party, arid his right to the relief must clearly appear; but, where the object is the enforcement of a public right, the people are regarded as the real party, and the relator need not show he has any legal interest in the result. It is enough that he is interested, as a citizen, in having the laws executed and the duty in question enforced." As example of the latter class may be cited People v. Collins, 19 Wend. 56, which was a petition to compel commissioners of highways to open and work a certain road. The relator was interested in having the road opened, as one of the public, the subject of the petition being the public work itself. So in Hamilton v. State, 3 Ind. 452, where a county auditor refused to issue a duplicate list for the collection of taxes. In County of Pike v. State, 11 Ill. 202, a commissioner to expend a certain fund was held to be a proper relator, where the fund had been mixed with the general fund of a county. See, also, State v. Staley,' 38 Ohio St. 259. Without referring to other cases, of which there are many, where an officer or citizen not directly interested in the result is held to be a proper party, it will be found that the relief sought in this class of cases is the performance of some duty affecting the public generally. The object sought to be attained in the cases now before us is a purely personal and private right of a creditor to obtain payment of its orders. It is urged in argument that the action of the treasurer interferes with the proceedings of the council in carrying out one of the purposes specified in chapter 726, and thus it becomes a matter of public concern, in regard to which any one may petition. While it is doubtless true that contractors will not so readily take jobs where there will be trouble in getting their pay, yet it is not alleged that the public work is impeded in this respect; and, even if it were, assuming the duty to pay the order, it is one in which the creditor alone is interested, and to which the hindrance to the public work is simply incidental. We think, therefore, that the creditor is the proper party to petition for mandamus.

...