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Whether this doctrine applies to state of- | latter court in Evans v. Tillman, 38 S. C. ficers or to state funds in the state treasury 238, 17 S. E. 49; Robertson v. Tillman, has been considered but twice, so far as we 39 S. C. 298, 17 S. E. 678, but without the have been able to ascertain. In the case of point here in question having been raised or Jones v. Reed, 3 Wash. 63, 27 Pac. 1069, considered. the supreme court of Washington held that Several courts have been unwilling to the doctrine does not apply. Four of the adopt this doctrine even in the case of a justices concurred, and one dissented. In municipal corporation. As applied to a the case of Butler v. Ellerbe, 44 S. C. 283, municipal corporation, it is founded in 22 S. E. 437, the supreme court of South part upon the corporate relation supposed Carolina held that the doctrine does apply. to exist, or in reality existing, between the Two of the justices concurred, and one dis inhabitants of the municipality and the sented. Such a suit was entertained by the municipality. The inhabitants are likened people or the state at large, the court's which it would be exempted forever from action can only be invoked by such execu- taxation to the state. tive officers of state as are by law intrusted with the discharge of such duties."

-Tennessee. In Sears v. James, 47 Or. 50, 82 Pac. 14,

In Bradley v. Powell County, 2 Humph. a suit by a taxpayer to enjoin the superintendent of the state penitentiary from mak- 427, 37 Am. Dec. 563, residents and citizens ing certain expenditures, the court said:

of a territory proposed to be included in a

new county were allowed “For the purposes of this appeal the aver

an injunction ments of the complaint must be taken as

against the commissioners appointed by an true, and the single question is whether act of the legislature to establish such new plaintiff can maintain the suit. That a

county, the grounds of the decision being

that the new county did not contain the taxpayer may invoke the interposition of a court of equity to prevent the illegal dis necessary area prescribed by the constitu

tion, and that any person aggrieved might position of public funds is no longer open to question in this state.” But the injune discuss the question of expense.

apply for the remedy. The court did not tion was denied on the ground that the de

In Lynn v. Polk, 8 Lea, 121, it was held fendant had no authority under the law to pay any bills, or handle or disburse any enjoin a state board from carrying out the

that resident citizens and taxpayers might state funds, as his accounts must be presented to and audited by the secretary of provisions of a refunding act which would state, who was not a party to the action, increase the taxes, the court holding that and the court must assume that he would that they were not compelled to wait for

the taxpayers properly brought the action, discharge his duty.

Or. In McKinney v. Watson,

the tax before attacking the act, and that

145 Pac. 266, an action by a resident, citizen, the board acting by authority of the state.

the suit was not against the state, nor were and taxpayer to enjoin the secretary of state from auditing, and the state treasurer from paying, claims for salaries incurred by an

---Colorado. other defendant who was corporation com- In Frost v. Thomas, 26 Colo. 222, 77 Am. missioner, the act under which he was ap- St. Rep. 259, 56 Pac. 899, the court suspointed being claimed to be unconstitution. tained a proceeding to restrain the defendal, the court said: “It is well established ant, in his capacity as governor of the state, by precedents in this state that a taxpayer from appointing officers for a recently whose enforced contribution to the public created county, upon the ground that the funds will be increased has a right to re- act creating that county and providing for sist by litigation in his own name the en- the appointment of its officers was unconforcement of an unconstitutional statute, or stitutional. The status of the plaintiffs the misapplication of public money.” The does not appear, but it seems that they alcourt denied the injunction on the ground | leged that injuries would result to them that the plaintiff did not show that his bur- and others similarly situated if the act den of taxation would be increased by the were carried into effect. administration of the statute under consideration, as it did not appear that he con

-Kansas. tributed to the fees out of which the expenditures were to be made, or that his

In Martin v. Ingham, 38 Kan. 641, 17 taxes would be otherwise increased.

Pac. 162, the court sustained on principle

the right of a resident taxpayer and elector - Pennsylvania.

to enjoin the governor from the perform

ance of certain acts in the organization of In Mott v. Pennsylvania R. Co. 30 Pa. 9, a new county, but denied the relief on the 72 Am. Dec. 664, it was held that canal merits; the governor, however, while not commissioners and taxpayers and loan cred- / waiving the authority of the court to in. itors of the state had a right to enjoin the quire into the matter, did waive any objecgovernor and other state officials from pro- tion as to the capacity of the plaintiff to ceeding under a statute which enabled a bring suit. certain corporation to make a contract by This case was followed in the similar case

to the shareholders of a private corporation, , very far already to allow mere private and the municipality is likened to their persons to invoke the aid of the judiciary trustee. See Dill. Mun. Corp. 3d ed. § 914 to interfere with the management of public (731).

affairs, even in the case of a municipal This foundation for the doctrine, need corporation. Even that far the courts have less to say, does not exist in the case of gone only with hesitation, and some have a suit involving state atfairs. By no possi- refused to go. They ought not, we think, to bility can the state, in her relations with her extend the doctrine further, and apply it to citizens, be likened to a private corporation. the affairs of the state itself. Between the state and a private corpora- So far as plaintiff's interest as a mere tion there is in that connection no analogy citizen is concerned, apart from his interwhatever.

est as a taxpayer, nothing is better settled And, even apart from this, it is going than that such a general interest as that, of Martin v. Lacy, 39 Kan. 703, 18 Pac. the acts of another department of govern. 951, where the plaintiff alleged, as a qualifi- ment, simply because he is one of many cation to maintain the action, that he was such citizens and taxpayers." a resident and legal elector; but the gove In llutchison v. Skinner, 21 Misc. 729, ernor consented that the action might pro- 49 N. Y. Supp. 360, the court denied an inceed in the name of the plaintiff, and junction asked for against the superintendwaived objection to his capacity to prose- ent of public instruction of the state, by a cute the same.

taxpayer, in relation to appointment of

teachers in a certain locality and as to inThe action not allowed.

structions to a local board of education as

to proceeding with schools, etc., holding The action is not allowed in New York, that the statute permitting taxpayers' acLouisiana, South Dakota, and Washington; tions should apply only to municipalities, the same has been held in a Federal court and apparently taking the view that it was and in Porto Rico.

only the statutes that gave the taxpayer

any right to ng an action. -New York.

The Hutchison Case was followed in Long In Thompson v. Canal Fund Comrs. 2 ) Johnson, 70 Misc. 308, 127 N. Y. Supp. Abb. Pr. 248, the plaintiff sued to enjoin 756, where it was held that an individual the commissioners from borrowing money,

taxpayer who has no special rights or grievclaiming that the act was unconstitutional ances aside from the great mass of taxand alleging that he was the owner of a

payers cannot enjoin a state board or com

mission authorized by statute to select the considerable portion of a loan under an earlier statute, and also that he was a tax- site and build a prison (but the court did

not seem to admit that the commission had paver. The court refused an injunction on ground that officers of the state ought not done more than show favoritism or lack of to be enjoined from carrying out the law economy or errors in judgment).

This case was followed in Whitbeck v. of the legislature, even if it was unconstitutional, and stated that the plaintiff had Hooker, 73 Misc. 573, 133 N. Y. Supp. 534, attempted to sue in a double capacity, both denying an injunction sought in a tax: in regard to an injury peculiar to himself payers' action against the state board of and as a taxpayer. The court seems to from entering into a contract covering the

highway commissioners, to restrain them think that these objections to such a course of proceeding must lead to a correction construction of a part of the state highway in the nature of his action if he intended (but the court did not seem to think in

this case that the injunction ought to have to proceed. In Schieffelin v. Komfort, 212 N. Y. 520,

been granted on the merits). L.R.A. --, 106 N. E. 675, it was held that a citizen taxpayer could not bring an action

-Louisiana. against the officials of all the counties in the state, and against the secretary of state, zen and taxpayer to enjoin the payment of

SUTTON v. BUIE denies the right of a citito restrain them from taking steps pre- state funds. liminary to the nomination and election of delegates to a constitutional convention

-South Dakota. pursuant to an election for the purpose of determining whether such a convention In State ex rel. Cranmer v. Thorson, 9 S. should be held, which election was in ac- | D. 149, 33 L.R.A. 582, 68 N. W. 202, the cordance with an act of the legislature al court dismissed an action brought on the leged to be void. The court said: “This relation of an elector taxpayer to enjoin court has not refrained, and will not re- the secretary of state from certifying to frain, from declaring a statute unconstitu- the officials of the county a certain question tional when it is asserted in a controversy as a constitutional amendment, the where the question becomes a judicial one, ground that the legal steps necessary as a but we repeat that the courts of this state prerequisite therefor had not been carried have denied the right of a citizen and tax- out. The court gave as its reasons that any payer to bring before the court for review additional burden that might relate to the



held by him in common with all the citizens It is therefore, ordered adjudged, and deof the state, does not afford him a basis for creed that the judgment appealed from be contesting the constitutionality of an act affirmed. of the legislature. Cooley, Const. Lim.

O'Niell, J., concurs in the decree. chap. 7, p. 196.

Having concluded that the plaintiff is Monroe, Ch. J., concurring: without pecuniary interest, and therefore I am of opinion that, upon the case without standing, to maintain this suit, we presented, the courts are vested with no audo not reach, and therefore do not pass thority to interfere in the manner proposed upon, the question of whether this is not by the plaintiff, with another independent a suit against the state, and therefore not department of the state government in the maintainable even if plaintiff had a pecuni- discharge of its functions, and I thereary interest in the premises.

fore concur in the conclusion herein reached. relator as a taxpayer by reason of submit the state and belonging to the common ting the question to the people at a general school fund of the state. election too trifling, fanciful, and In Bilger v. State, 63 Wash. 457, 116 speculative for serious consideration; and Pac. 19, it was held that “courts of equity that, having failed to show that he would will not inquire into the action of state be injured by the intended action of the de- officers accused of misappropriating public fendant, he was not entitled to have the funds on the complaint of a citizen and taxintended action of the defendant enjoined or payer, as the attorney general of the state its regularity investigated in this action; is the proper person to institute suits where and also that the court had no jurisdiction there has been a wrongful disposition of to enjoin the making of an unconstitutional the public revenue.” law, or the making of an unconstitutional amendment to the Constitution.

-Federal cases. In Davenport v. Elrod, 20 S. D. 567, 107

This note does not consider the general N. W. 833, the court dismissed a writ of question of the jurisdiction of the Federal prohibition brought by a resident taxpaver courts to enjoin 'state officers. against a state commission, holding that the statute under which they acted was con

In Morgan v. Graham, 1 Woods, 124, Fed. stitutional, etc., but not it seems discussing New York who was a taxpayer of Louisiana

Cas. No. 9,801, it was held that a citizen of the right of the plaintiff to bring the accould not restrain the governor of Louisition.

ana and other state officers from executing

and issuing certain state bonds which the -Washington.

legislature had by special act authorized

and required them to issue, on the ground In Jones v. Reed, 3 Wash. 57, 27 Pac. that the state Constitution limited the 1067, cited in SUTTON v. BUIE, it was held debts of the state to an amount which had that the doctrine that a citizen and tax- already been exceeded; that the bonds were payer might enjoin the officers of a munici- donations to a railroad company, and that pality could not be extended to the state the legislature had no power to make such officers, as the state was sovereign.

donations. The court stated that it was a In Birmingham v. Cheetham, 19 Wash. general rule that a man could not maintain 657, 54 Pac. 37, the court declined to enjoin a private suit for an injury which he sus. the state grain inspector and the state tained in common with every other. treasurer in regard to certifying and pay.

In Navarro v. Post, 5 Porto Rico Fed. ing out inspection fees, on the ground that Rep. 61, the court, while holding that the the plaintiff, a citizen and taxpayer, had acts intended were lawful, held also that not shown that he would be pecuniarily “no private citizen or taxpayer,--and that and directly injured by the acts complained is all that these two complainants are, beof.

cause their allegation that they are memIn Tacoma v. Bridges, 25 Wash. 221, 65 bers of the house of delegates adds nothPac. 186, it was held that a city, and a ing to their right to sue in this court,citizen taxpayer therein, could not en- has any right to sue or enjoin the state join the state commissioner of public lands (insular) officials, or to in any manner from leasing them to parties who, it was al. impede or hamper them, in the exercise of leged, were about to commit nuisances their official functions." thereon which would operate injuriously to the health of the complainant individual

Unsettled or doubtful jurisdictions. and city, as the threatened injury was too

The cases seem inconclusive or doubtful remote. The court does not notice in its in a number of jurisdictions; in Wisconsin opinion a further allegation of the complaint, that the defenilant threatened to there is a local peculiarity not free from

obscurity. file a plat of certain land of the state, dividing the same into blocks, streets, etc., apparently intending to dedicate the streets

-Georgia. to the public without any right or authority, In Peeples v. Byrd, 98 Ga. 688, 25 S. E. the land in question being the property of | 677, where the plaintiff claimed a special



interest, the court held he had not such upon which we might have summarily dis. special interest, and that, as a citizen and posed of it. It is the settled law of this taxpayer, he could not enjoin the state re- state, if anything can be settled by repeated porter from carrying out a contract made adjudications, that an executive officer of by the reporter and the governor, because the state is not subject to the control or (1) the state would be a necessary defend- | interference of the judiciary in the performant and it could not be sued, and (2) while ance of duties belonging to him as an executhe governor was not a nominal party, the tive officer and that act done, in junction would suspend a contract which threatened to be done, by him in his official he officially participated in making in his capacity, can be brought under judicial condiscretion, and (3) that, further, the plain- trol or interference by mandamus or intiff had not shown that the act complained junction; that this is the rule, even when of would increase taxes, or make his taxes | the act is purely ministerial.” any higher. In Smith v. Magourich, 44 Ga. 163, where

-North Carolina. the court affirmed the right of citizens to en join commissioners appointed by the leg way v. Jenkins, 63 N. C. 147, where an in

The question was not litigated in Galloislature from locating the county seat of a new county at a place alleged not to be not junction was granted restraining the state validly selected, the commissioners were

treasurer from subscribing for stock of a probably not considered as more than coun

railroad, and delivering the bonds of the ty officials.

state to the railroad, on the ground that the statute under which he proposed to act was

unconstitutional. - Michigan.

It was admitted that,

for the purposes of the action, the plaintill, While the court did not seem to go into as a taxpayer and property owner, had a the question of the funds that woull be right to bring it, all parties wishing to necessary to carry out the provisions of the have the constitutional question settled. statutes declared to be invalid, reference may be made in this connection to Giddings

-Oklahoma. v. Blacker, 93 Mich. 1, 16 L.R.A. 402, 52 N. W. 944, where it was held that a citizen 944, affirmed in 221 U. S. 559, 55 L. ed. 853,

In Coyle v. Smith, 28 Okla. 121, 113 Pac. and elector had a right to apply for a mandamus against the secretary of state to pre- and a citizen and taxpayer of the state,

31 Sup. Ct. Rep. 688, a resident of Guthrie, vent him from giving notice of the election of senators under one apportionment act,

was denied an injunction to prevent the reand to compel him to give it instead under moval of the capital from Guthrie, where he an earlier act, on the ground that the later claimed to have large property interests, to

Oklahoma city. The decision was on the act was unconstitutional. The court held, however, that both acts were invalid, and ground that the removal was valid, and the directed that the secretary must issue his court did not discuss the right of the plainnotice under a still earlier act, unless a new

tiff to bring the action. apportionment should be made by the legis. lature before the time expired for giving

-South Carolina. the notice. It was insisted by the attorney general that the relator had no standing in

It may be said in limine that, as will be court because, prior to filing his petition, he

seen below, the court in SUTTON V. BUIE made no application to the prosecuting at goes too far in stating that in Butler v. torney of his county, the attorney general, I held that the doctrine of the right of the

Ellerbe, infra, the South Carolina court or other public officer, to apply to the court for a mandamus touching the matter taxpayer to enjoin the illegal disposition of here in issue. This was overruled by the municipal funds “does apply" to state court on the ground that the attorney gen- Butler Case, although the chief justice, in

funds, for the question was waived in the eral himself appeared to be adverse to the his dissenting opinion, thought the plainposition taken by the relator.

tiff had a right to bring the action. - Minnesota.

It will be seen that in the early case of

Auditor v. Treasurer, infra, the court apIn Rippe v. Becker, 56 Minn. 100, 22 parently recognizes the right of the eitizen L.R.A. 857, 57 N. W. 331, the court sus- to bring the action, but the later cases do tained the right of citizen, freeholder, and not seem to sustain it, and the Duncan taxpayer to restrain the board of railway Case, infra, apparently denies the right. and warehouse commissioners from build- In Auditor v. Treasurer, 4 S. C. 311, ing a state elevator pursuant to a statute where an action was sustained brought in declared to be unconstitutional.

the name of the state by the state auditor, But in Secombe v. Kittelson, 29 Minn. relator, against the state treasurer and 555. 12 N. W. 519, where the status of the county treasurers, to enjoin the state treas. plaintiff does not appear, the court, in deny. urer from issuing and putting in circulaing on the merits à suit to restrain the tion illegal scrip, and to enjoin him and the state treasurer from paying out of the other defendants from receiving such scrip funds of the state the interest about to for taxes past due or to become due, and become due upon state bonds alleged to be from paying out such scrip, it was claimed illegal, said: "There was another ground' that no right of action subsists in the plaintiff to pray the injunction sought for.”, the case of McCullough v. Brown had been The court said inter alia: “There is an- overruled in so far as it held the dispenother view which may be taken of the ob- sary law unconstitutional by the subsejection thus urged. . A public officer having quent case of State ex rel. George v. Aiken, the charge or care of the property or money 42 S. C. 222, 26 L.R.A. 345, 20 S. E. 221, of the state, as to its proper preservation stated also that that case did not affect the and disposition, occupies, in regard to it, question of the right to sue; and in the the relation of a trustee. He must hold it Butler Case he refers to various authori. alone in strict devotion to the purposes of ties which seem, however, to relate simply to the agency which his office confers. The a right to proceed against the oflicers of state, as a cestui que trust, may enforce municipalities or against a municipality. the trust and save the subject of it from In Butler v. Ellerbe, supra, cited in SUTconversion to an object not within its scope. | TON v. BUIE, where the court denied an apA private citizen and taxpayer has such an plication by a citizen and taxpayer to reequity as will authorize him, on behalf of strain state oflicers from paying superhimself and all others who will be prejudiced visors of registration and other officials for by the proposed wrongful act of the officer, services in what was claimed to be an unin respect either to the money or the prop- constitutional election, it appears that the erty, to resort to judicial proceedings for decision was made waiving question as its prevention. Even if the plaintiff, in his to the right of the petitioner to equitable official capacity as auditor, could not sus- relief, although the dissenting opinion of tain his complaint against the state treas. Chief Justice McIver holds that the plainurer and the county treasurers to the ex- tiff had a right to bring the action. tent of the entire relief which he seeks In Duncan v. State Bd. of Edu. 74 S. C. under it, the court may still entertain his 560, 54 S. E. 760, affirmed sub nom. Dunapplication, looking to his rights as a mem- can v. Heyward, 78 S. C. 227, 58 S. E. 1095, ber of the community in the trust of which where the court denied an injunction to the principal defendants are trustees, hold- prevent the state board of education from ing the money of the state on conditions carrying out a contract which the court and for purposes subject only to the consti- held to be not beyond their power, and the tutional contract of the legislature. His action was brought by a taxpayer and paabsolute and personal rights in the prem-tron of the public school, the court said: ises cannot be lost, because he asks for their "The injury which the petitioners allege protection in an official, in place of an in- they would suffer does not differ in kind dividual, relation."

from that which would be suffered by the In Evans v. Tillman, 38 S. C. 238, 17 people at large patronizing the public S. E. 49, referred to in SUTTON v. BUIE, an schools, and if there had been any cause of injunction against the governor and state action, the suit should have been institut. treasurer by a taxpayer was denied on the ed by or on behalf of the state. Manson v. ground that the ofiicers were not acting South Bound R. Co. 64 S. C. 120, 41 S. E. beyond their powers as laid down by the 834. That 'aside from that, the personal statute in question.

interest of the petitioners is exceedingly Robertson v. Tillman. 39 S. C. 298, 17 small, it being impossible that it could S. E, 678, also referred to in SUTTON V. amount to more than five or six dollars each BUIE, was an application by a citizen, bond year." (The Manson Case, supra, related holder, and taxpayer to restrain the issue to a municipality. ance of state bonds under the contract ad. judged valid in Evans v. Tillman, upon the

-West Virginia. ground that the act purporting to authorize such issue was unconstitutional and void, the statute attacked was held to be consti

In Slack v. Jacob, 8 ". Va. 612, where and the injunction was denied the

tutional, it seems to have been held that ground that the act was constitutional.

a court of first instance could not enjoin In McCullough v. Brown, 41 S. C. 220, 23 L.R.A. 410, 19 S. E. 458, the county had been found to be unconstitutional.

the governor, at all events until the statuto board of control under the dispensary act were restrained from opening a


- Wisconsin. at the suit of taxpayers, residents, and free. hold voters. The court stated that, with- In Wisconsin the matter depends to some out considering at any length the question extent upon the constitutional provision of mere procedure, it seemed to it that the that the supreme court “shall have power to remedy by injunction was appropriate, and issue writs of habeas corpus, mandamus, inthat the real object of the action was to junction, quo warranto, certiorari, and prevent certain persons from engaging in a other original and remedial writs, and to business involving the use of public funds hear and determine the same." derived from taxation, under an act of the In State ex rel. Bolens v. Frear, 148 Wis. legislature claimed to be unconstitutional. 456, L.R.A. 1915B, 569, 134 N. W. 673, 135 The authorities to which the court refers N. W. 164, Ann. Cas. 1913A, 1147, the briefly on this question seem to be those re-court, while dismissing the complaint, holdlating to municipalities. The opinion was ling the income tax laws which were atdelivered by the chief justice, who, in his tacked to be valid, and refusing an injunc. dissenting opinion in Butler v. Ellerbe, 44 tion to restrain state officers from carrying

1 S. C. 256, 22 S. E. 425, while stating that'out the statute, considered at great length


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