
    Charles Miller and others v. Town of Palermo.
    July Term, 1873.
    1. Quo Warranto: Parties Plaintiff. Private individuals, who have no
    interest other than as citizens, residents, and tax-payers of a municipal corporation, cannot maintain an action of quo warranto against such corporation. [State v. McLaughlin, 15 Kan. 233.]
    2. -. If the injury is one that particularly affects a person, he has a
    right to the action. If it affects the whole community alike, their remedy is by proceedings by the state, through its appointed agencies. [School-district v. State, 15 Kan. 48; McMillan v. Butler, Id. 65; Center Tp. v. Hunt, 16 Kan. 439; Atchison, T. & S. F. 11. Co. v. State, 22 Kan. 13; Mixon v. School-district, 32 Kan. 511; S. C. 4 Pac. Bep. 1017.]
    Error from Doniphan district court.
    
      Quo warranto.
    
    The title of the action below was “Charles Miller, Joseph Hastings, Nicholas Harrington, James T. Lindsley and Henry A. Howard, plaintiffs, v. The Inhabitants of the Town of Palermo, and Robert Kimber, Charles Wilson, Wm. R. Powers, Obediah Smith, and J. G. Inman, as the Board of Trustees of said Town of Palermo, defendants.” The petition is as follows: “The plaintiffs aver that they are citizens, residents, and tax-payers on the following described lands, to-wit: [describes.320 acres of land;] that there are a large number of citizens, residents, and inhabitants upon said lands, to-wit, the number of fifty; that both said plaintiffs and defendants are included in said number of fifty; that said defendants claim to be a municipal corporation, under the name and style of the ‘town of Pal-ermo,’ and that said defendants Kimber, Wilson, Powers, Smith, and Inman are the board of trustees of said corporation, and that said Kimber is the chairman of said board; that defendants claim all of said above-described lands as included within the limits of said municipal corporation, and to have and exercise all the rights, powers, and privileges of a municipal corporation over all of said lands, and all the inhabitants of said lands, and over the persons and property of these plaintiffs. Plaintiffs aver that defendants are not a corporation, and that none of them are officers of any such municipal corporation. Wherefore plaintiffs demand judgment that said pretended corporation, and said pretended officers be ousted,, and the franchises of said pretended corporation be seized into *the hands of the state, and said pretended corporation dissolved.”
    To this petition the defendants demurred: “ (1) That said plaintiffs have not legal capacity to sue in this action, it appearing from said petition that in said action the county attorney of said county or the attorney general of the state of Kansas are the only persons authorized to sue; (2) that there is a defect of parties plaintiff in this: that said action should have been brought by the county attorney of said county or the attorney general of the state of Kansas; (8) the petition of the said plaintiffs does not state facts sufficient to constitute a cause of action.”
    The district court, at the December term, 1872, sustained the demurrer, and gave judgment for the defendants.
    
      Nathan Price, for plaintiffs.
    The real question in this case is whether this action could be brought-by these plaintiffs, or whether it should be brought by the county attorney or the attorney general. I claim that the amendment found on page 277, Laws 1871, to the Civil Code, places the power to sue in the hands of the plaintiffs, and takes it from either the county attorney or attorney general.
    
      Albert Perry, for defendants.
    The interest which the plaintiffs have in the subject of the action is one common to all the inhabitants of the town. Without having a peculiar interest in the subject of the action, and without their rights being peculiarly affected, they cannot maintain the action. Craft v-Jackson Co., 5 Kan, *519.
   Brewer, J.

Can private individuals, having no other interest than that of citizens, residents, and tax-payers of a supposed municipal corporation, maintain an action of quo warranto in their own names-against such corporation, or must such action be brought in the name of the state, and by *the attorney general or the county attorney ? The district court decided that the action must be in the name of the state, and in that opinion we concur. This court has had occasion, in two or three eases, to consider under what circumstances grievances of a public character can be investigated at the suit of a private individual, and the rule has been thus laid down: “If the injury is one that peculiarly affects a person, he has his right of action; if it affects the whole community alike, their remedy is by proceedings by the state, through its appointed agencies.” Craft v. Jackson Co., 5 Kan. *521. That case was one of an application for an injunction to restrain the issue of some county warrants; but the-rule thus enunciated is of general application. It was followed by this court in two mandamus cases: Bobbett v. Dresher, 10 Kan. *9; Turner v. Jefferson Co. Com’rs, Id. *16. And we see no reason why it should not be applied to cases like the one at bar. The reasons for the rule are as imperative in this as in any class of cases. It is needless to repeat those reasons here, as they have been so fully stated in the case in 5 Kan. above cited. Counsel for plaintiffs in error seem to recognize the applicability of this rule, and therefore base their right to maintain this action on an amendment to the Code of Civil Procedure found in section 2, c. 116, Laws 1871, p. 277, which reads:

“When the action is brought by the attorney general * * * it shall be prosecuted in the name of the state, but when the action is brought by a person claiming an interest in the office, * * * or.claiming any interest adverse to the franchise, gift, or grant which is the subject of the action, it shall be prosecuted in the name and under the direction and at the expense of such person.” We do not understand this language as giving a right, but only as prescribing the form of action. No person is authorized to bring an action of" quo warranto who did not have that right before; but if one who is authorized does bring it, he must bring it in his own name, and not in the name of the state upon his relation. “When the action is brought,” assumes that the action is rightfully brought. *The; amendment consists in adding the clause, “or claiming any interest adverse,” etc.; so that now a person claiming an interest in or one adverse to any franchise must, if entitled to an action of quo warranto, bring it in his own name. What the nature of the interest, then,, must be in or adverse to a franchise to secure to an individual the right to this action is not defined. The language used, it is true, is general; “an interest” — “any interest” —are the terms employed. But this general language must be construed with reference to the; purpose of the section. This, as we have seen, and as is evident, is to regulate the form in which such actions shall be brought; and language thus used should be construed as having reference to rights of action already existing, rather than as creating new rights. The plaintiffs here show no interest adverse to the corporation defendant peculiar to themselves or different from those of the community in general. Hence, if they are authorized to maintain this action, any tax-payer and citizen of that community can summon the corporation into court to try the validity of its existence, and that, too, when the state which created the corporation is content to let it live. Com. v. Farmers’ Bank, 2 Grant, Cas. 392; Com. v. Union F. & M. Ins. Co., 5 Mass. 230.

The judgment will be affirmed.

(All the justices concurring.)  