3 Div. 17.
June 9, 1932.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Reynolds Reynolds, of Clanton, for appellant.
A taxpayer is a party beneficially interested in having all taxable property in the county assessed properly and is, therefore, a proper party to make application for mandamus looking to that end. 18 R. C. L. 290; Board of Ed. v. State ex rel., 222 Ala. 70, 131 So. 239; State Board v. People, 191 Ill. 528, 61 N.E. 339, 58 L.R.A. 513; Ex parte State, 113 Ala. 85, 21 So. 210; State ex rel. v. Burke, 160 Ala. 163, 48 So. 1035; State v. Curtis, 210 Ala. 1, 97 So. 291; Bryce v. Burke, 172 Ala. 219, 55 So. 635. Appeal by either party is a matter of right from final judgment in mandamus proceeding. Code 1923, §§ 6078, 8980. The relator in a mandamus proceeding may use the name of the state as a matter of course without resort to the intervention of the Attorney General. State ex rel. v. Brewer, 62 Ala. 215; State ex rel. Brewer, 64 Ala. 287; State ex rel. v. White, 116 Ala. 202, 23 So. 31; Mooring v. State ex rel., 207 Ala. 34, 91 So. 869; State ex rel. v. Smith, 187 Ala. 411, 65 So. 942; Spraggins v. State ex rel., 183 Ala. 663, 63 So. 83; State ex rel. v. Templin, 208 Ala. 651, 95 So. 149; Bryce v. Burke, 172 Ala. 219, 55 So. 635. The fact that it may be the duty of the Attorney General to institute mandamus to enforce a right or duty owing by an official to the public would not preclude a citizen from protecting or enforcing the right by mandamus, especially where the Attorney General appears in defense of such official. 38 C. J. 842; Giddings v. Blocker, 93 Mich. 1, 52 N.W. 944, 16 L.R.A. 402; People v. State Board, 42 Mich. 422, 4 N.W. 274; People v. Green, 29 Mich. 121.
Thos. E. Knight, Jr., Atty. Gen., and A. A. Evans, Asst. Atty. Gen., for appellee.
Martin, Thompson McWhorter, of Birmingham, amici curiæ.
Only the Attorney General or an attorney employed by him with approval of the Governor can represent the state in a case such as this; and the Attorney General has authority to dismiss this appeal. Code 1923, §§ 852, 854; State ex rel. v. Burke, 160 Ala. 163, 48 So. 1035; 6 C. J. 814; In re Stephenson, 113 Ala. 85, 21 So. 210; People v. Pacheco, 29 Cal. 210; People v. Navarre, 22 Mich. 1; Babcock v. Hanselman, 56 Mich. 27, 22 N.W. 99. Relator in his private capacity has no right to the issuance of the writ. Hemmelweit v. State, 200 Ala. 203, 75 So. 961; Russell v. Holderness, 216 Ala. 95, 112 So. 309; Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A. 1918F, 1020; Jackson v. B. F. M. Co., 154 Ala. 464, 45 So. 660; Dennis v. M. O. R. Co., 137 Ala. 649, 35 So. 30, 97 Am. St. Rep. 69; O'Brien v. Pawtucket, 18 R.I. 113, 25 A. 914; Sweet v. Smith, 153 Mich. 674, 117 N.W. 59; McClaugherty v. Bluefield W. W. Co., 67 W. Va. 285, 68 S.E. 28, 32 L.R.A. (N.S.) 229; Greene v. Louisville I. R. Co., 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1280, Ann. Cas. 1917E, 88.
This is a companion case to that instituted for the same purpose upon the relation of Chilton county. Ante, p. 191, 142 So. 531. Both cases are treated and considered at the same time. Many of the legal questions are the same in each. We have written somewhat at length in the Chilton county case in the discussion of the pertinent principles. We need not here repeat that discussion.
In this case relator is a resident citizen of Chilton county and taxpayer on an assessment of property in that county. While the petition alleges that the state tax commissioner assessed the property of the Alabama Power Company in that county at 45 per cent. of its value instead of 60 per cent. of such value as fixed by law, it does not allege that the property of relator was not likewise assessed at 45 per cent. of its value or less, nor that the taxable property in that county owned by others was assessed at a higher rate than 45 per cent. of its value. So that if such discrimination has the effect of showing a personal private right of relator to remove it (Penney v. State, 221 Ala. 230, 128 So. 596), and if this proceeding is the proper method to enforce that right, the petition here does not undertake to make such a claim of discrimination. Relator shows no official duty to the public at large, but only to the state in its sovereign capacity. The general rule is that an individual cannot enforce a right owing to the government; certainly not in any case, unless he sustains an injury peculiar to himself. 38 Corpus Juris, 839, 840, 841; 18 R. C. L. 325; Pryor Motor Co. v. Hartsfield, 207 Ala. 646, 93 So. 524; Rose v. Lampley, 146 Ala. 445, 41 So. 521.
He is, as is Chilton county in its case, merely seeking to force the state, by the unauthorized use of its name, to control an administrative function of one of its officers, in respect to a matter which is the prerogative of the state.
The motion of the Attorney General to dismiss the appeal is granted.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.