The Taxpayer Who Couldn’t Sue the State

We are inclined to the opinion that the right of a resident taxpayer to invoke the interposition of a court of equity to compel officers of a municipal corporation to do their duty, or restrain them from illegally increasing the burden of taxation by squandering the public funds of a corporation, has received the great weight of at least modern authority.

The doctrine on the subject was thus laid down by Judge Field of the supreme court of the United States: Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of moneys of the county or the illegal creation of a debt which they, in common with other property holders of the county, may otherwise be compelled to pay, there is at this day no serious question.

It will be observed, however, that this case falls short of asserting that doctrine claimed here by the respondent that courts of equity will restrain the action of state officers in matters of public concern on the petition of a taxpayer who shows no special interest, nor will the language or argument of the court bear any such construction. On the other hand, it is based on relationship of the taxpayer to municipal corporations. In all cases reported the restraining order has been asked against the county, town, city or district officer.

It is argued by the respondent that notwithstanding the absence of authority, there is no difference in principle between restraining county officers and state officers in matters of public concern, on the prayer of a taxpayer. The principle upon which the doctrine in regard to municipal, or quasi municipal, corporations is based, flows from its analogy to a well settled doctrine of equity governing private corporations, where each stockholder has an interest in the property of the corporation, and may interfere to protect the corporation funds from the illegal or fraudulent acts of its officers, but it is reasoning that cannot apply to a state government.

As the fallacy of a proposition can best be shown by distorting it, we may presume that if one of the departments of the state government can be suspended at the instance of a private citizen, who has not got more than a community interest in a matter which concerns the general public, that every department of state can be suspended at the same time, and the whole machinery of government stopped, and the very existence of the state, so far as the exercise of its functions is concerned, destroyed. Surely such a theory of practice is not in harmony with the genius of our government, nor will authority sanction nor public policy permit the adoption of a rule which will authorize any number of volunteers who may, rightfully or wrongfully, interpret the laws differently from the interpretation put upon them by officers of the state, to paralyze for a time every or any branch of state government.

It seems to us that there is a difference in principle, and there might be a very great difference in results; and probable results are what the policy of law is based upon. To prevent just such results, and to protect the interests of the public, the statute has provided for an election by taxpayers of an officer, the attorney-general, who is especially clothed with authority to institute proceedings of this kind. In the act creating the office of attorney-general, and defining his duties in the law of 1887-8, it is provided, among other things, that it is his duty to force the proper application of funds appropriated to the public institutions of the territory; nor do we understand that any of the provisions of that chapter have been repealed by subsequent enactments of the state.

The constitution provides that all laws in force at the time of its adoption shall remain in force until their repeal; and there is nothing in the provisions of the act entitled “An act in relation to attorneys,” laws of 1891, which repeals any of the provisions of the act of 1887-88. It might as well be held that all the territorial acts in relation to prosecuting attorneys have been repealed by the same act.

The law, then, having provided an officer for an especial duty, it is the better policy to submit each litigation to his guidance. This court, untrammeled by precedent or authority in laying down a policy for this state, deems it safer to regulate the instituting of suits involving the disposition of the revenue of the state, where no private interests are involved, to the judgment and discretion of the Attorney-General. With this view of the case, it is not necessary to examine other alleged errors. The demurrers should have been sustained. The judgment is therefore reversed, and as the demurrer goes to the life of the complaint, the case is dismissed.

Judge Dunbar wrote the opinion and all the judges concurred except Judge Hoyt, who dissents.