Shipley v. Smith , 45 N.M. 23 ( 1940 )

On Motion for Rehearing. It is asserted in the motion for rehearing that the holding of the Wisconsin Supreme Court, In re Cole's Estate, cited in our opinion as a supporting authority, was rejected in the case of Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278, 62 A.L.R. 858. Even if counsel's appraisal is correct, which we doubt, we are not moved by it. Furthermore, the Missouri Supreme Court eight years later had this to say in State v. Sevier, 1936, 339 Mo. 483,98 S.W.2d 677, 678:

"The State Purchasing Agent owed a duty to the public to honestly and fairly exercise his discretion to award the contract in question to the lowest and best bidder. If he failed to lawfully perform that duty, his action in the matter could be reached and controlled by mandamus. Private citizens as well as taxpayers or proper public officials may maintain mandamus to enforce the performance of a public duty. The rule of law governing such suits when brought by private citizens is well stated in State ex rel. Black Gilmore v. Wilson,158 Mo. App. 105, 120, 121, 139 S.W. 705, 709, as follows:

"`Where a public duty is sought to be enforced in which the public generally is interested by private citizens on behalf of the public as well as on their own, they may move for a writ of mandamus, and are not required to plead or prove any special or particular interest in the result of the performance of the general public duty because the people are regarded as the real, moving party.'"

See also Ward v. City of Roswell, 34 N.M. 326, 281 P. 28, where we said: "The right of a taxpayer to sue to enjoin threatened devastavit of municipal funds or property is well established in this state. Asplund v. Hannett, 31 N.M. 641, 249 P. 1074, 58 A.L.R. 573. Such right would disappear if it must yield to objections such as one and two. It is argued by appellants that, if the action taken by the council is void, it leaves city officials still liable for water used, leaves the city free to enforce the liability, and leaves appellee free to compel such enforcement by mandamus. Taxpayers' suits are exceptional. The remedy suggested does not preclude injunction. Nor need thetaxpayers, in such suits, show greater or more irreparable injurythan the public loss in which he shares." (Emphasis supplied.)

The motion for rehearing is denied.

BRICE, ZINN, SADLER, and MABRY, JJ., concur.