CITES BY TOPIC:  public right

Black's Law Dictionary, Fourth Edition, page 1397:

PUBLIC1 JURIS. Lat. Of public right. The word "public" in this sense means pertaining to the people, or affecting the community at large; that which concerns a multitude of people; and the word "right," as so used, means a well-founded claim; an interest; concern; advantage; benefit. State v. Lyon, 63 Okl. 285, 165 P. 419, 420.

This term, as applied to a thing or right, means that it is open to or exercisable by all persons. It designates things which are owned by "the public:" that is, the entire state or community, and not by any private person. When a thing is common property, so that any one can make use of it who likes, it is said to be publici juris; as in the case of light, air, and public water. Sweet.

[Black's Law Dictionary, Fourth Edition, p. 1397]


American Jurisprudence 2d, Mandamus, 65: Public Nature of Right

Mandamus is available in a proper case to one who has an immediate right to have a public act done. 7 It is said, especially in the early cases, that a right that may be enforced by mandamus must be in its nature a public right, as distinguished from a purely private right, and that the writ issues only in cases relating to the public and the government. 8

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Footnote 7. Ballas v Woodin, 155 Conn 283, 231 A2d 273.

Footnote 8:  American Asylum v Phoenix Bank, 4 Conn 172; State ex rel. Moyer v Baldwin, 77 Ohio St 532, 83 NE 907. See also Tobey v Hakes, 54 Conn 274, 7 A 551.

[American Jurisprudence 2d, Mandamus, 65: Public Nature of Right]


American Jurisprudence 2d, Mandamus, 306: Persons entitled to invoke remedy

Applying the general rule already discussed, 17 it is established that a writ of mandamus directed to a court or judge will issue only at the instance of an applicant who has a clear right to demand performance of the act sought to be enforced. 18 In case the duty in question is enforceable only by parties to the action to which it pertains, nonparties have no right to invoke mandamus to compel its performance by the court. 19 One who is under a criminal charge and who has escaped from custody is not entitled to take action before the court while still at large, and so may not resort to mandamus to compel the performance of any duty by the court. 20 Similarly, the plaintiff in a case has no absolute right enforceable by mandamus to proceed with the trial thereof while he is in contempt of court for refusal to obey an order. 1 There is a conflict of authority as to whether a private individual can be the relator in an application for a writ of mandamus to compel a magistrate to perform his duty with respect to criminal proceedings. 2 Many cases adhere to the view that to entitle a private citizen to move for and prosecute the writ, he must show that he has some private or special interest to be subserved, or some particular right to be pursued or protected, independent of that which he holds in common with the public at large, and that it is for the public officers to institute the proceedings when public rights alone are to be subserved. 3 Other courts, however, maintain that when the question is one of public right, and the object of the mandamus is to procure the enforcement of a public duty, the relator is not required to show that he has any legal or special interest in the result, since it is sufficient if he shows that he is interested, as a citizen, in having the laws executed and the right enforced. 4 The true distinction has been said to be that if the general public, as distinguished from the state in its sovereign capacity, is affected, any member of the state may sue out the writ, but when the right or duty affects the state in a sovereign capacity, as distinguished from the people at large, the proceeding must be instituted by public authorities. 5 With respect to civil actions, it is the general rule that mandamus will lie on the application of a private person to compel a court or magistrate to perform a plain duty. 6

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Footnote 17. 63 et seq., supra.

Footnote 18. Re Humes, 149 US 192, 37 L Ed 698, 13 S Ct 836.

Footnote 19. Ex parte Cutting, 94 US 14, 24 L Ed 49.

Footnote 20. People v Genet, 59 NY 80, holding that mandamus to compel sealing of a bill of exceptions will be denied when made by one who was tried for felony, made his escape, and is still at large.

Footnote 1. Campbell v Justices of Superior Ct. 187 Mass 509, 73 NE 659.

Footnote 2. State ex rel. Romano v Yakey, 43 Wash 15, 85 P 990.

Footnote 3. Fritts v Charles, 145 Cal 512, 78 P 1057; Mitchell v Boardman, 79 Me 469, 10 A 452.

Annotation: 49 ALR2d 1285, 1286 (issuance of warrant).

It has been held that a statute authorizing a writ of mandamus on the information of "the party beneficially interested" does not extend to a private person seeking the writ to compel the issuance of a warrant for the arrest of one accused, by a complaint filed by the relator in a municipal police court, of a misdemeanor in violating the Sunday closing law, where the petition in mandamus does not show that the relator was injured by such violation in any manner different from the injury to the general public. State ex rel. Skilton v Miller, 164 Ohio St 163, 57 Ohio Ops 145, 128 NE2d 47, 49 ALR2d 1279.

Footnote 4. State ex rel. Romano v Yakey, 43 Wash 15, 85 P 990.

Annotation: 49 ALR2d 1285 (issuance of warrant).

Footnote 5. Nickelson v State, 62 Fla 243, 57 So 194.

Footnote 6. Hill v Superior Court, 15 Cal App 307, 114 P 805; People ex rel. Farmers' Reservoir & Irrig. Co. v Jefferson Dist. Ct. 46 Colo 386, 104 P 484; Williams v Capehart, 61 Fla 473, 54 So 774; Ex parte Ryan, 124 La 356, 50 So 385; State ex rel. Flick v Reddish, 148 Mo App 715, 129 SW 53; H. L. Griffin Co. v Howell, 38 Utah 357, 113 P 326.

[American Jurisprudence 2d, Mandamus, 306: Persons entitled to invoke remedy]


American Jurisprudence 2d, Mandamus, 390: Enforcement of public rights and duties

The prevailing view is that where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result 19 or any exclusive right or interest to be protected, 20 but it is sufficient that he is interested as a citizen or taxpayer in having the laws executed and the duty in question enforced. 1 In a proper case, one who is interested as a citizen or taxpayer in having a public duty enforced may institute the proceeding even though he is also personally interested. 2 As a guard to public officials against too numerous and unreasonable attacks, the general indifference of private individuals to public omissions and encroachments, the fear of expense in unsuccessful and even in successful litigation, and the discretion of the court have been very largely depended upon. 3 In some jurisdictions, action may be brought in the name of a citizen or taxpayer without joinder of the state 4 or attorney general, 5 but in others the customary procedure is for it to be brought in the name of the state on relation of the party interested, 6 unless only duties owing to the state in its sovereign capacity are involved, 7 and action in the name of the state on relation of the attorney general has been held to be proper. 8 The foregoing rule has frequently been applied. 9 Thus, although there is authority to the contrary, 10 many cases hold that any private citizen is entitled to sue for mandamus to compel the repair of a bridge, 11 or to compel a city to perform its statutory duty to take charge of a bridge and preserve it as a public highway. 12 Also, public duties relating to elections are, within certain limitations, enforceable at the instance of a private relator. 13 The district attorney, the attorney general, or even a private citizen have been held proper parties to bring an action for mandamus to compel a court which has suspended the execution of a sentence without authority to see that the sentence is enforced. 14

Other authorities hold that although, as a matter of good government, every private citizen is interested in the proper discharge of the duties of public officials, yet so long as his interest is merely that which he shares in common with other citizens, he must look to the law officers of the state to correct official delinquencies. 15 They hold that mandamus will not lie at the instance of a private citizen who has no interest in the subject matter in litigation different from that of the public generally to compel the performance of a purely public duty, 16 and that acts of public officers which cannot injure the petitioner in any way will not furnish him ground for complaint. 17

The authorities concur in support of the proposition that an individual may have a particular interest of his own, independent of that which he holds as a member of the general public, in the performance of a duty imposed by law on some officer or board and that in such cases he is not simply an indistinguishable unit of the general public, but is in possession of a separate and peculiar right which makes him the party interested and so entitles him to seek a mandatory writ to enforce the duty. 18 A private person may have such interest as will enable him to enforce a duty of a city although it does not appear that he is a citizen or taxpayer. 19 Applying this rule, it is held that the parents of children of scholastic age are proper parties to petition for mandamus to compel the director of a school district to establish a school, 20 and that a board of directors of a fraternal organization conducting a home for orphans may, where it has statutory authority to sue, maintain mandamus to compel admission of the orphan children to the public schools. 1 Also, the publisher of the only newspaper in a county has been held to have a sufficient interest to invoke mandamus to compel the county supervisor to obey a statute requiring him to publish in some newspaper published in the county the claims audited by a county board, and to attack the constitutionality of an apparently inconsistent statute. 2

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Footnotes:

Footnote 19. Florida Industrial Com. v State, 155 Fla 772, 21 So 2d 599; Policemen's Benev. Asso. v Board of Trustees, 21 App Div 2d 693, 250 NYS2d 523.

Footnote 20. Bennington v Booth, 101 Vt 24, 140 A 157, 57 ALR 156.

Footnote 1. Union P. R. Co. v Hall, 91 US 343, 23 L Ed 428; State ex rel. Chilton County v Butler, 225 Ala 191, 142 So 531; Beene v Hutto, 192 Ark 848, 96 SW2d 485; Hollman v Warren, 32 Cal 2d 351, 196 P2d 562 (mandamus to compel appointment of notaries); People ex rel. Stonebraker v Wood, 90 Colo 506, 10 P2d 331; State ex rel. Biggs v Corley, 36 Del 135, 172 A 415 (mandamus to compel the lieutenant governor of the state to issue writs of election for the purpose of filling vacancies in the senate); State ex rel. Davis v Atlantic Coast Line R. Co. 95 Fla 14, 116 So 48; Manchester v Montgomery, 170 Ga 361, 153 SE 34 (mandamus to enforce appointment of a city manager); People ex rel. Beardsley v Rock Island, 215 Ill 488; 74 NE 437; Wampler v State, 148 Ind 557, 47 NE 1068; Crane v Chicago & N. W. R. Co. 74 Iowa 330, 37 NW 397; Levering v Williams, 134 Md 48, 106 A 176, 4 ALR 374; Tuckerman v Moynihan, 282 Mass 562, 185 NE 2; State ex rel. Passer v County Bd. 171 Minn 177, 213 NW 545, 52 ALR 916; State ex rel. Lovell v Tinsley, 241 Mo App 690, 236 SW2d 24; State ex rel. Olsen v Public Service Com. 129 Mont 106, 283 P2d 594; State ex rel. Thompson v Kearney, 25 Neb 262, 41 NW 175; State ex rel. Morris v Wrightson, 56 NJL 126, 28 A 56; State ex rel. Burg v Albuquerque, 31 NM 576, 249 P 242; Baird v Kings County, 138 NY 95, 33 NE 827; State ex rel. Little v Langlie, 5 ND 594, 67 NW 958; Putnam v Norblad, 134 Or 433, 293 P 940; State ex rel. Wellford v Williams, 110 Tenn 549, 75 SW 948; Bennington v Booth, 101 Vt 24, 140 A 157, 57 ALR 156; State ex rel. Grinsfelder v Spokane Street R. Co. 19 Wash 518, 53 P 719; State ex rel. Zickefoose v West, 145 W Va 498, 116 SE2d 398 (preparation of ballots); State ex rel. Wisconsin Tel. Co. v Janesville Street R. Co. 87 Wis 72, 57 NW 970.

Annotation: 49 ALR2d 1285.

Footnote 2. State ex rel. Acme Auto Radiator Co. v Burke (CP) 49 Ohio Ops 171, 64 Ohio L Abs 410, 110 NE2d 623 (holding that an unsuccessful low bidder on a public contract may, in his capacity as a taxpayer, maintain a mandamus proceeding against a city for abuse of discretion in awarding the contract).

Footnote 3. State ex rel. Ferry v Williams, 41 NJL 332.

Footnote 4. Byrd v Lawrimore, 212 SC 281, 47 SE2d 728.

Footnote 5. Newton County Water Supply Dist. v Bean (Tex Civ App) 320 SW2d 158, err ref n r e.

Footnote 6. Kendrick v State, 256 Ala 206, 54 So 2d 442; Florida Industrial Com. v State, 155 Fla 772, 21 So 2d 599; State Election Board v Johnson Circuit Court (Ind) 180 NE2d 540; Ort v Hutchinson, 114 Ohio App 251, 19 Ohio Ops 2d 159, 181 NE2d 807; Vetters v State (Tex Civ App) 255 SW2d 588.

Footnote 7. 391, infra.

Footnote 8. See 7 Am Jur 2d, Attorney General 20.

Footnote 9. Mandamus to prevent park commissioners from permitting games to be played in the city parks on Sunday in violation of statute may be maintained by private parties who are citizens and taxpayers of the city. Levering v Williams, 134 Md 48, 106 A 176, 4 ALR 374.

A school district may, at the instance of a resident citizen and taxpayer, be compelled by mandamus to publish an annual statement of its receipts and disbursements, since such resident and taxpayer is beneficially interested in knowing the amount of money received and for which particular purposes it was expended. Crockett v Board of Education, 58 Utah 303, 199 P 158.

One who is a resident and taxpayer of the town in which a school or university is required to be established may sue to enforce performance of the duty to establish it. Young v University of Kansas, 87 Kan 239, 124 P 150.

A duty to assess all the taxable property in a district may be enforced by mandamus on the application of a taxpayer who is beneficially interested. Hyatt v Allen, 54 Cal 353; Knight v Thomas, 93 Me 494, 45 A 499.

Footnote 10. Commonwealth v Westfield Borough Officers, 11 Pa Co 369, 1 Pa Dist 495.

Footnote 11. Ottawa v People, 48 Ill 233; Brophy v Schindler, 126 Mich 341, 85 NW 1114.

Annotation: 46 ALR 257, 283.

Footnote 12. Pumphrey v Baltimore, 47 Md 145.

Footnote 13. See 26 Am Jur 2d, Elections 367.

Footnote 14. People ex rel. Woodin v Ottaway, 129 Misc 120, 220 NYS 671, affd 222 App Div 711, 224 NYS 887, affd 247 NY 493, 161 NE 157, reh den 248 NY 527, 162 NE 511.

Annotation: 141 ALR 1225, 1236.

Footnote 15. State ex rel. Skilton v Miller, 164 Ohio St 163, 57 Ohio Ops 145, 128 NE2d 47, 49 ALR2d 1279 (holding that an individual's mere interest as a citizen in having the laws enforced is not sufficient foundation for a writ of mandamus, and that for a private citizen to be entitled to move for and prosecute a writ of mandamus to compel action by a public official, the relator must show that he has some private or special interest to be subserved, or some particular right to be pursued or protected, independent of that which he holds in common with the public at large).

Annotation: 49 ALR2d 1285, 1286.

Footnote 16. Young v University of Kansas, 87 Kan 239, 124 P 150; Sterling v University of Michigan, 110 Mich 369, 68 NW 253; Dombrowski v Philadelphia, 431 Pa 199, 245 A2d 238 (disapproving Davidson v Council of Beaver Falls, 348 Pa 207, 34 A2d 505). See also Brewster v Sherman, 195 Mass 222, 80 NE 821.

This limitation on the right of a private relator to bring mandamus to compel performance of a public duty is recognized in Sansom v Mercer, 68 Tex 488, 5 SW 62.

An attorney does not have a beneficial interest, by being a member of the bar, which enables him to maintain a mandamus proceeding requiring the performance of judicial functions prescribed by statute. State ex rel. Harris v Silbert, 169 Ohio St 261, 8 Ohio Ops 2d 278, 159 NE2d 439.

Footnote 17. State ex rel. Skilton v Miller, 164 Ohio St 163, 57 Ohio Ops 145, 128 NE2d 47, 49 ALR2d 1279 (holding that if no legal right of a person can be affected by the failure of a public official to act in any given matter, he does not have such a beneficial interest as will permit him to maintain an action in mandamus to require the official to so act.

The practice of allowing a title company to stamp a private serial number on original papers filed with the clerk of court for record affects only the owner of the paper, and a petitioner who sues as a citizen, taxpayer, and member of the bar, and who does not complain of the making of a serial number on his private paper, is not entitled to mandamus to prevent such practice, even though it is an appropriate remedy. Atlanta Title & T. Co. v Tidwell, 173 Ga 499, 160 SE 620, 80 ALR 735.

A statutory duty of county commissioners to provide annual funds for the support of widowed mothers cannot be enforced by mandamus at the instance of a citizen or taxpayer who is not a member of the class in whose interest the demand is made, and who is not beneficially interested in the proceeding. Startup v Harmon, 59 Utah 329, 203 P 637.

The courts will not compel a school district board, by mandamus, to close the schoolhouse for the purpose of excluding infrequent religious meetings, at the instance of a taxpayer who is not required to contribute anything whatever to the support of such meetings or the repair of the schoolhouse in which they are held. State ex rel. Gilbert v Dilley, 95 Neb 527, 145 NW 999.

Footnote 18. Southern Exp. Co. v R. M. Rose Co. 124 Ga 581, 53 SE 185; Claussen v Perry, 248 Iowa 108, 79 NW2d 778; Sharer v Kansas Soldiers' Comp. Bd. 132 Kan 572, 296 P 729; Pumphrey v Baltimore, 47 Md 145; Ibbetson v Schulz (Mo App) 64 SW2d 313; State ex rel. Thompson v Kearney, 25 Neb 262, 41 NW 175; White v Holding, 217 NC 329, 7 SE2d 825; State ex rel. Holdridge v Industrial Com. 11 Ohio St 2d 175, 40 Ohio Ops 2d 162, 228 NE2d 621; Excise Bd. v State, 105 Okla 102, 231 P 862.

One having a license to sell liquors has sufficient interest to entitle him to file a petition for mandamus to compel the erasure of erroneous entries in the journals of the legislature showing the passage of a statute imposing an additional tax on such business, payment of which is necessary to protect him from fine or imprisonment. State ex rel. Brickman v Wilson, 123 Ala 259, 26 So 482.

One who is denied a private right or benefit by reason of the failure of a public officer to perform an official act may, by mandamus, compel performance of the act. State ex rel. Holdridge v Industrial Com. 11 Ohio St 2d 175, 40 Ohio Ops 2d 162, 228 NE2d 621.

A taxpayer whose property is assessed and taxed at 60 percent of its actual value, whereas the property of public utilities is assessed by the state tax commission at a much lower percentage, has sufficient interest to entitle him to maintain an action for a writ of mandamus to compel the commission to comply with a statute requiring all property to be assessed at its actual value, although his tax is not increased by the alleged discrimination. Pierce v Green, 229 Iowa 22, 294 NW 237, 131 ALR 335.

Footnote 19. A member of a fire department holding his position under civil service rules may maintain mandamus proceedings to compel the administration to put in force an ordinance adopted by the voters which will reduce the working hours of the firemen. State ex rel. Taro v Everett, 101 Wash 561, 172 P 752.

Footnote 20. Maddox v Neal, 45 Ark 121.

Footnote 1. Grand Lodge, I.O.O.F. v Board of Education, 90 W Va 8, 110 SE 440, 48 ALR 1092.

Footnote 2. State ex rel. Fooshe v Burley, 80 SC 127, 61 SE 255.

[American Jurisprudence 2d, Mandamus, 390: Enforcement of public rights and duties]


American Jurisprudence 2d, Nuisances, 40: Requirement of injury to or interference with public or public rights [58 Am Jur 2d NUISANCES]

As reflected by the definitions of public nuisance, 54 nuisances are public where they violate public rights, 55 or where they interrupt or interfere with a public right or privilege common to every person in the community. 56 Public nuisances have variously been said to exist wherever acts or conditions constitute an obstruction of public rights 57 –those rights common to all members of the general public, which are collective in nature 58 –or where they affect the rights enjoyed by citizens as part of the public, 59 that is, the rights to which every citizen is entitled, 60 or where such acts or conditions are subversive of public order, decency, or morals, 61 and, it has been said that the interference with a public right is the sine qua non of a cause of action for public nuisance. 62 But, not all interferences with public rights are public nuisances. 63 The nuisance must affect an interest common to the general public, 64 must produce a common injury, 65 or be dangerous or injurious to the general public, 66 or it must be harmful to the public health, must prevent the public from a peaceful use of their land and the public streets, 67 or there must be some direct encroachment on public property. 68

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Footnotes

Footnote 54. 35.

Footnote 55. Wade v Campbell (5th Dist) 200 Cal App 2d 54, 19 Cal Rptr 173, 92 ALR2d 966; Couture v Board of Education, 6 Conn App 309, 505 A2d 432; Conlon v Farmington, 29 Conn Supp 230, 280 A2d 896; Andersen v University of Rochester (4th Dept) 91 App Div 2d 851, 458 NYS2d 404; Riggins v District Court of Salt Lake County, 89 Utah 183, 51 P2d 645.

A public nuisance arises out of the violation of public rights or the doing of unlawful acts. State ex rel. Brown v Rockside Reclamation, Inc., 47 Ohio St 2d 76, 1 Ohio Ops 3d 46, 351 NE2d 448.

Footnote 56. State v Waterloo Stock Car Raceway, Inc., 96 Misc 2d 350, 409 NYS2d 40.

A public nuisance consists of an interference with the rights of the community at large, which may include anything from the blocking of a highway to a gaming-house or indecent exposure. Philadelphia Electric Co. v Hercules, Inc. (CA3 Pa) 762 F2d 303, 15 ELR 20554, cert den 474 US 980, 88 L Ed 2d 337, 106 S Ct 384.

Footnote 57. Couture v Board of Education, 6 Conn App 309, 505 A2d 432; Conlon v Farmington, 29 Conn Supp 230, 280 A2d 896; Marsland v Pang, 5 Hawaii App 463, 701 P2d 175, cert den (Hawaii) 744 P2d 781; Twitty v State, 85 NC App 42, 354 SE2d 296, review den 320 NC 177, 358 SE2d 69; Parker v Ft. Worth (Tex Civ App Fort Worth) 281 SW2d 721.

Footnote 58. Marsland v Pang, 5 Hawaii App 463, 701 P2d 175, cert den (Hawaii) 744 P2d 781.

Footnote 59. Couture v Board of Education, 6 Conn App 309, 505 A2d 432; Conlon v Farmington, 29 Conn Supp 230, 280 A2d 896; Marsland v Pang, 5 Hawaii App 463, 701 P2d 175, cert den (Hawaii) 744 P2d 781.

Footnote 60. Dahlstrom v Roosevelt Mills, Inc., 27 Conn Supp 355, 238 A2d 431; Biggs v Griffith (Mo App) 231 SW2d 875.

Footnote 61. Marsland v Pang, 5 Hawaii App 463, 701 P2d 175, cert den (Hawaii) 744 P2d 781 (referring to acts or series of acts subversive of public order, decency, or morals); Twitty v State, 85 NC App 42, 354 SE2d 296, review den 320 NC 177, 358 SE2d 69; State v Turner, 198 SC 487, 18 SE2d 372 (dancing, swearing, and drunkenness producing disturbing noises); Parker v Ft. Worth (Tex Civ App Fort Worth) 281 SW2d 721.

Footnote 62. Andersen v University of Rochester (4th Dept) 91 App Div 2d 851, 458 NYS2d 404.

The concept of public nuisance requires an interference with some common public right. Napro Development Corp. v Berlin, 135 Vt 353, 376 A2d 342.

Footnote 63. Armory Park Neighborhood Asso. v Episcopal Community Services, 148 Ariz 1, 712 P2d 914.

Footnote 64. Andersen v University of Rochester (4th Dept) 91 App Div 2d 851, 458 NYS2d 404.

Footnote 65. Wade v Campbell (5th Dist) 200 Cal App 2d 54, 19 Cal Rptr 173, 92 ALR2d 966; Couture v Board of Education, 6 Conn App 309, 505 A2d 432; Conlon v Farmington, 29 Conn Supp 230, 280 A2d 896; Marsland v Pang, 5 Hawaii App 463, 701 P2d 175, cert den (Hawaii) 744 P2d 781; Connerty v Metropolitan Dist. Com., 398 Mass 140, 495 NE2d 840; Riggins v District Court of Salt Lake County, 89 Utah 183, 51 P2d 645.

Footnote 66. Chicago v Cecola (1st Dist) 56 Ill App 3d 143, 13 Ill Dec 863, 371 NE2d 955, revd on other grounds 75 Ill 2d 423, 27 Ill Dec 462, 389 NE2d 526.

Footnote 67. People of Redford v McGregor, 65 Mich App 747, 238 NW2d 183, 88 ALR3d 987.

Footnote 68. Connerty v Metropolitan Dist. Com., 398 Mass 140, 495 NE2d 840.

[American Jurisprudence 2d, Nuisances, 40: Requirement of injury to or interference with public or public rights [58 Am Jur 2d NUISANCES]


American Jurisprudence 2d, Nuisances, 243 Public nuisance [58 Am Jur 2d NUISANCES]

In order to maintain an action for public nuisance the complaint must allege facts that bring the thing or conduct complained of within the definition of a public nuisance, 91 must assert that there has been an interference with a public right, 92 and that the actions of defendant were unreasonable or that plaintiffs' rights were substantially invaded; 93 an allegation of substantial interference with the common rights of the public at large is a sufficient predicate for a private action based upon public nuisance. 94 But, in order for private individuals to state a cause of action based upon the theory of public nuisance they must allege that they have sustained an injury different in kind from that suffered by the general public; 95 an allegation that the nuisance complained of affects "other property in the neighborhood" besides that of the plaintiff does not have the effect of converting what is essentially a private nuisance into a public one, 96 and a plaintiff who fails to allege an injury different from that suffered by other residents and merchants of the county, may not maintain a private action for public nuisance. 97

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Footnotes:

Footnote 91. Kreling v Superior Court of Los Angeles County, 18 Cal 2d 884, 118 P2d 470; Ward v Oakley Co., 125 Cal App 2d 840, 271 P2d 536 (disapproved on other grounds by King v Lennen, 53 Cal 2d 340, 1 Cal Rptr 665, 348 P2d 98).

Footnote 92. Andersen v University of Rochester (4th Dept) 91 App Div 2d 851, 458 NYS2d 404.

Footnote 93. Pratt v Hercules, Inc. (DC Utah) 570 F Supp 773.

Footnote 94. Little v Union Trust Co., 45 Md App 178, 412 A2d 1251; Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 464 NYS2d 712, 451 NE2d 459, 115 BNA LRRM 3454.

Footnote 95. Brown v Petrolane, Inc. (2nd Dist) 102 Cal App 3d 720, 162 Cal Rptr 551.

Footnote 96. E. W. Face & Son v Cherry, 117 Va 41, 84 SE 10.

Footnote 97. Queens County Business Alliance, Inc. v New York Racing Asso. (2d Dept) 98 App Div 2d 743, 469 NYS2d 448.

[American Jurisprudence 2d, Nuisances, 243 Public nuisance [58 Am Jur 2d NUISANCES]]


American Jurisprudence 2d, Quo Warranto, 122 --As binding successor in office [65 Am Jur 2d QUO WARRANTO]

Ordinarily, a judgment against a public officer in regard to a public right binds his successor in office. 72 But this rule is not applicable to a judgment in quo warranto. Such judgment does not bind the respondent's successor in office, even though such successor may trace his title to the same source. 73 This follows from the nature of the writ of quo warranto. It is never directed to an officer as such, but always to the person–not to dictate to him what he shall do in his office, but to ascertain whether he is constitutionally and legally authorized to perform any act in, or exercise any functions of, the office to which he lays claim.

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Footnotes

Footnote 72. See Public Officers and Employees (1st ed 519).

Footnote 73. State ex rel. Kennedy v Broatch, 68 Neb 687, 94 NW 1016.

[American Jurisprudence 2d, Quo Warranto, 122 --As binding successor in office [65 Am Jur 2d QUO WARRANTO]]


American Jurisprudence 2d, States, Territories, and Dependencies, 91 On behalf of its citizens [72 Am Jur 2d STATES, TERRITORIES, AND DEPENDENCIES]

A state in its sovereign capacity may in a proper case maintain a suit in behalf of its citizens for the protection of their rights. 95 Thus, the state can bring suit when a threatened illegal act will injuriously affect or endanger public interests. 96 However, suit in the name of the sovereign cannot be used to redress civil wrongs sustained by some citizens at the hands of others, no public right being involved. 97 And a state cannot allow the use of its name in a suit for the sole benefit of one of its citizens. 98

The state may sue to restrain a public nuisance where the procedure at law does not afford an adequate remedy. 99 And its right to do so is not restricted to nuisances which affect its proprietary rights; in its sovereign capacity it may sue to restrain a public nuisance which injuriously affects or is likely so to affect the health of its citizens and inhabitants or the public welfare. 1 And many courts have recognized that the state may maintain an action in equity to enjoin common carriers and other public utility companies whose rates are fixed by law, from violating the terms of the statutes regulating their rates and charges, and exacting unlawful and excessive rates and charges. 2

The "parens patriae" doctrine is a recognition of the principle that a state, when a party to a suit involving a matter of sovereign interest, must be deemed to represent all its citizens. 3 The state, suing as parens patriae, may assert the rights of its citizens based on federal laws. 4 But it cannot sue in this capacity to protect its citizens from the enforcement of a federal statute, since it is the United States, not the state, which represents them as parens patriae in their relations to the Federal Government. 5

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Footnotes

Footnote 95. Re Debs, 158 US 564, 39 L Ed 1092, 15 S Ct 900; People ex rel. Atty. Gen. v Tool, 35 Colo 225, 86 P 224; State v Pacific Exp. Co. 80 Neb 823, 115 NW 619.

Annotation: 89 L Ed 1081.

The fact that the state may have no pecuniary interest in the subject matter of the suit does not preclude it from invoking jurisdiction of the court to prevent wrongdoing of one resulting in injury to the general welfare; every government is entrusted by the terms of its being with powers and duties to be exercised and discharged for the general welfare. Re Debs, 158 US 584, 39 L Ed 1092, 15 S Ct 900.

The state, as representative of the public, has an interest in preventing the interruption of a flow of natural gas to a substantial portion of its population which might seriously jeopardize their health, comfort, and welfare, apart from that of the individuals affected, so as to entitle it to maintain a suit to prevent the interruption. Pennsylvania v West Virginia, 262 US 553, 67 L Ed 1117, 43 S Ct 658, 32 ALR 300.

The state is always a proper party to a proceeding to protect the rights of the public against a quasi-public corporation which is wilfully ignoring its duties under state statutes and violating its own charter. State v Mobile, J. & K. C. R. Co. 86 Miss 172, 38 So 732.

A wrong of a nature which affects the rights and interests of the people throughout a state, when committed by a public service corporation, is a public wrong which the state may bring suit to restrain without having any pecuniary or property interest in the matter. State v Pacific Exp. Co. 80 Neb 823, 115 NW 619.

Jurisdiction conferred upon a state Supreme Court by the state constitution in civil cases in which the state shall be a party is not confined to cases in which the state has a mere pecuniary interest but may extend to cases in which the state through its proper officers seeks the enforcement of public rights or the restraint of public wrongs. State v Pacific Exp. Co. 80 Neb 823, 115 NW 619.

As to the interest of a state necessary to invoke the original jurisdiction of the Supreme Court, see 32 Am Jur 2d, Federal Practice and Procedure 217.

Footnote 96. State v Pacific Exp. Co. 80 Neb 823, 115 NW 619.

Annotation: 89 L Ed 1081, 1082.

Where acts, although constituting crime, will interfere with the liberties, rights, and privileges of citizens, the state not only has the right, but it is its duty, to restrain by injunction the commission of such acts. It is not bound to wait until the object of the illegal combination is effected. People ex rel. Atty. Gen. v Tool, 35 Colo 225, 86 P 224, 229, 231.

Footnote 97. State ex rel. Barker v Chicago & A. R. Co. 265 Mo 646, 178 SW 129; People v Albany & S. R. Co. 57 NY 161.

Footnote 98. New Hampshire v Louisiana, 108 US 76, 27 L Ed 656, 2 S Ct 176, holding that owners of the bonds and coupons of a state who are precluded from prosecuting suits thereon in their own names cannot sue in the name of their respective states after getting the consent of the state.

Footnote 99. People ex rel. Dyer v Clark, 268 Ill 156, 108 NE 994.

Annotation: 40 ALR 1145, 1153, s. 91 ALR 315, 317; 65 ALR 699, 89 L Ed 1081, 1082.

Footnote 1. Wisconsin v Illinois, 278 US 367, 73 L Ed 426, 49 S Ct 163; Wyoming v Colorado, 259 US 419, 66 L Ed 999, 42 S Ct 552; New York v New Jersey, 256 US 296, 65 L Ed 937, 41 S Ct 492; Kansas v Colorado, 185 US 125, 46 L Ed 838, 22 S Ct 552; Missouri v Illinois, 180 US 208, 45 L Ed 497, 21 S Ct 331.

Footnote 2. Atty. Gen. v Old Colony R. Co. 160 Mass 62, 35 NE 252; State v Pacific Exp. Co. 80 Neb 823, 115 NW 619.

Annotation: 89 L Ed 1081, 1090.

Footnote 3. New Jersey v New York, 345 US 369, 97 L Ed 1081, 73 S Ct 689.

The interest which a state has, as parens patriae, in its economic development and the prosperity and welfare of its citizens, extends to the protection of itself and its citizens against discriminatory railroad rates. Georgia v Pennsylvania R. Co. 324 US 439, 89 L Ed 1051, 65 S Ct 716, reh den 324 US 890, 89 L Ed 1437, 65 S Ct 1018.

Footnote 4. Georgia v Pennsylvania R. Co. 324 US 439, 89 L Ed 1051, 65 S Ct 716, reh den 324 US 890, 89 L Ed 1437, 65 S Ct 1018.

Footnote 5. Massachusetts v Mellon, 262 US 447, 67 L Ed 1078, 43 S Ct 597.

[American Jurisprudence 2d, States, Territories, and Dependencies, 91 On behalf of its citizens [72 Am Jur 2d STATES, TERRITORIES, AND DEPENDENCIES]]


American Jurisprudence 2d, United States, 59 Laches [77 Am Jur 2d UNITED STATES]

Laches on the part of duly authorized federal officers or agents cannot be asserted against the United States as a defense to an action instituted by it in its sovereign capacity to enforce a public right or to protect the public interest. 21 The defense of laches is available, however, in a suit brought in the name of the United States only on behalf of private persons, such as a suit to cancel a land grant for fraud or a suit by the government in a proprietary capacity. 22 The United States may also be barred from recovering interest because of laches if the defendant has not earned interest upon money improperly received by him or her. 23

The government's delay in pressing its claim for the return of advance payments to one who willfully, persistently, and fraudulently departs from the requirements of a contract does not amount to a waiver of the right to recover interest from the date when the work should have been completed under the contract. 24

_____________________

Footnotes

Footnote 21. Chesapeake & Delaware Canal Co. v United States, 250 US 123, 63 L Ed 889, 39 S Ct 407; United States v New Orleans P. R. Co., 248 US 507, 63 L Ed 388, 39 S Ct 175; French Republic v Saratoga Vichy Spring Co., 191 US 427, 48 L Ed 247, 24 S Ct 145; United States v Michigan, 190 US 379, 47 L Ed 1103, 23 S Ct 742; Bigby v United States, 188 US 400, 47 L Ed 519, 23 S Ct 468; United States v Beebe, 180 US 343, 45 L Ed 563, 21 S Ct 371; United States v Verdier, 164 US 213, 41 L Ed 407, 17 S Ct 42; Hart v United States, 95 US 316, 95 Otto 316, 24 L Ed 479; Hunter v United States, 30 US 173, 5 Pet 173, 8 L Ed 86.

As to the defense of laches, generally, see 27A Am Jur 2d, Equity 140 et seq.

As to the effect of a statute of limitations defense in cases involving the United States, see 51 Am Jur 2d, Limitation of Actions 398, 414.

Footnote 22. United States v New Orleans P. R. Co., 248 US 507, 63 L Ed 388, 39 S Ct 175; Curtner v United States, 149 US 662, 37 L Ed 890, 13 S Ct 985; United States v Beebe, 127 US 338, 32 L Ed 121, 8 S Ct 1083.

Footnote 23. United States v Sanborn, 135 US 271, 34 L Ed 112, 10 S Ct 812.

Footnote 24. United States v United States Fidelity & Guaranty Co., 236 US 512, 59 L Ed 696, 35 S Ct 298.

[American Jurisprudence 2d, United States, 59 Laches [77 Am Jur 2d UNITED STATES]]


American Jurisprudence 2d, Freedom of Information Acts, 1 Federal Freedom of Information Act [37A Am Jur 2d FREEDOM OF INFORMATION ACTS]

The federal Freedom of Information Act (FOIA) was enacted to open the administrative process to the scrutiny of the press and the general public. 1 The purpose of the FOIA is to allow public access to official information unnecessarily shielded from the public view. 2 The statute is broadly conceived, seeking to permit access to official information long shielded unnecessarily from public view and attempting to create a judicially enforceable public right to secure such information from possibly unwilling official hands. 3 The basic purpose of the FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed. 4 A purpose of the Act is to open agency action to the light of public scrutiny, by requiring agencies to adhere to a philosophy of full disclosure, under a belief that such a philosophy, when put into practice, will help to insure an informed citizenry, vital to the functioning of a democratic society. 5 The Act seeks to provide a workable and balanced formula which makes available information that ought to be public, and, at the same time, protects certain information which must remain confidential in order to protect legitimate governmental functions. 6 The emphasis of the Act is nonetheless on disclosure, 7 since the Act clearly states 8 that nothing therein authorizes the withholding of information or limits the availability of records to the public, except as specifically stated therein. 9 It is axiomatic that the government is required to release any information which is properly requested unless it is exempt. 10 Virtually every document generated by an agency is available to the public in one form or another under FOIA, unless it falls within one of the Act's nine exemptions. 11 Accordingly, the policy of the Act requires that its disclosure provisions be construed broadly 12 and its exemptions be construed narrowly. 13

FOIA is a successor to the information provisions of the original Administrative Procedure Act. 14 FOIA was designed to strengthen the disclosure requirements of the old law 15 by eliminating ambiguous terms and loopholes, 16 such as the language in the former Act that matters of official record shall be made available to persons properly and directly concerned, except information held confidential for good cause found. This language was often cited in support of agency decisions not to disclose agency records. 17 FOIA was amended in 1974 and 1976 18 in order to strengthen its disclosure requirements and to overcome Supreme Court constructions of Exemptions 1, 19 3, 20 and 7 21 which did not meet congressional approval. It has been noted that these amendments narrowed the scope of government privileges previously recognized, such as the state secrets and official information privileges, and that the redefinition of these privileges by FOIA may also have profound effects in the area of evidentiary privileges. 22

Besides clarifying the former law, FOIA also created a judicially enforceable public right to secure information. 23 In order to eliminate expensive hurdles to the assertion of this right, the Act also provides that attorneys' fees may be awarded to a substantially prevailing party. 24 Congress also retains some oversight regarding the implementation of FOIA, since it requires that each agency file an annual report containing information regarding its efforts to administer fully the Act, including such items as the number of information requests refused, the number of administrative appeals, the persons responsible for the denial of records, and the results of any disciplinary proceedings taken against agency employees who do not comply with the Act. 25 The Attorney General must also submit an annual report detailing the number of cases litigated, the exemption involved in each case, the disposition of the case, the costs, fees, and penalties assessed against the government, and any other efforts undertaken by the Department of Justice to encourage agency compliance with the Act. 26 Of course, nothing within the Act is authority for the withholding of information from Congress. 27

________________________

Footnotes

Footnote 1. Renegotiation Bd. v Bannercraft Clothing Co., 415 US 1, 39 L Ed 2d 123, 94 S Ct 1028.

Footnote 2. Parton v United States Dept. of Justice (CA8 Mo) 727 F2d 774 (criticized on other grounds by Johnson v United States Dept. of Justice (CA10 Wyo) 739 F2d 1514).

Footnote 3. John Doe Agency v John Doe Corp., 493 US 146, 107 L Ed 2d 462, 110 S Ct 471, 17 Media L R 1225, 35 CCF 75737, reh den 493 US 1064, 107 L Ed 2d 966, 110 S Ct 884.

Footnote 4. John Doe Agency v John Doe Corp., 493 US 146, 107 L Ed 2d 462, 110 S Ct 471, 17 Media L R 1225, 35 CCF 75737, reh den 493 US 1064, 107 L Ed 2d 966, 110 S Ct 884; NLRB v Robbins Tire & Rubber Co., 437 US 214, 57 L Ed 2d 159, 98 S Ct 2311, 98 BNA LRRM 2617, 3 Media L R 2473, 84 CCH LC 10643 (criticized on other grounds by United States Dept. of Justice v Reporters Committee for Freedom of Press, 489 US 749, 103 L Ed 2d 774, 109 S Ct 1468, 16 Media L R 1545).

Footnote 5. United States Dept. of Justice v Tax Analysts, 492 US 136, 106 L Ed 2d 112, 109 S Ct 2841, 16 Media L R 1849, 89-1 USTC 9386, 63 AFTR 2d 89-1492, later proceeding (DC Dist Col) 759 F Supp 28, 18 Media L R 1943, affd (App DC) 296 US App DC 130, 965 F2d 1092, 20 Media L R 1531.

Footnote 6. Department of Air Force v Rose, 425 US 352, 48 L Ed 2d 11, 96 S Ct 1592, 1 Media L R 2509; Administrator, Federal Aviation Admin. v Robertson, 422 US 255, 45 L Ed 2d 164, 95 S Ct 2140, 1 Media L R 2465; Environmental Protection Agency v Mink, 410 US 73, 35 L Ed 2d 119, 93 S Ct 827, 4 Envt Rep Cas 1913, 1 Media L R 2448, 3 ELR 20057.

Footnote 7. Department of Air Force v Rose, 425 US 352, 48 L Ed 2d 11, 96 S Ct 1592, 1 Media L R 2509.

Footnote 8. NLRB v Sears, Roebuck & Co., 421 US 132, 44 L Ed 2d 29, 95 S Ct 1504, 89 BNA LRRM 2001, 1 Media L R 2471, 76 CCH LC 10803.

Footnote 9. 5 USCS 552(d).

Footnote 10. Garside v Webster (SD Ohio) 733 F Supp 1142.

Footnote 11. NLRB v Sears, Roebuck & Co., 421 US 132, 44 L Ed 2d 29, 95 S Ct 1504, 89 BNA LRRM 2001, 1 Media L R 2471, 76 CCH LC 10803.

FOIA exemptions are discussed in greater detail in 74 et seq.

Footnote 12. Stokes v Brennan (CA5 Ga) 476 F2d 699, 22 ALR Fed 317; Soucie v David, 145 US App DC 144, 448 F2d 1067, 2 Envt Rep Cas 1626, 1 Media L R 2435, 1 ELR 20147; Bristol-Myers Co. v Federal Trade Com., 138 US App DC 22, 424 F2d 935, 1970 CCH Trade Cases 73120, cert den 400 US 824, 27 L Ed 2d 52, 91 S Ct 46 and (criticized on other grounds by Dudman Communications Corp. v Department of Air Force, 259 US App DC 364, 815 F2d 1565, 13 Media L R 2450).

Footnote 13. Department of Air Force v Rose, 425 US 352, 48 L Ed 2d 11, 96 S Ct 1592, 1 Media L R 2509.

For a further discussion of the construction of FOIA exemptions, see 75.

Footnote 14. The former statute is set out in the 1967 amendment note to 5 USCS 552.

Footnote 15. Soucie v David, 145 US App DC 144, 448 F2d 1067, 2 Envt Rep Cas 1626, 1 Media L R 2435, 1 ELR 20147.

Footnote 16. American Mail Line, Ltd. v Gulick, 133 US App DC 382, 411 F2d 696, 7 ALR Fed 840.

Footnote 17. SR 89-813; HR 89-1497.

Footnote 18. See the amendment notes to 5 USCS 552.

Footnote 19. 80 et seq.

Footnote 20. 105 et seq.

Footnote 21. 287 et seq.

Footnote 22. Louisell and Mueller, Federal Evidence 224-232.

As to the effect of FOIA on discovery privileges, see 29, 30.

Footnote 23. Department of Air Force v Rose, 425 US 352, 48 L Ed 2d 11, 96 S Ct 1592, 1 Media L R 2509.

Judicial enforcement of FOIA is discussed in 487 et seq.

Footnote 24. Werner-Continental, Inc. v Farkas (SD Ohio) 478 F Supp 815, 104 BNA LRRM 2366, affd (CA6 Ohio) 661 F2d 935, 108 BNA LRRM 2811.

Attorneys' fees are discussed in 580 et seq.

Footnote 25. 5 USCS 552(e).

Footnote 26. 5 USCS 552(e).

Footnote 27. 5 USCS 552(d).

[American Jurisprudence 2d, Freedom of Information Acts, 1 Federal Freedom of Information Act [37A Am Jur 2d FREEDOM OF INFORMATION ACTS]]