shall therefore, without conceding that such a stipulation is binding upon the court, and without passing upon the question of whether the state, as such, has a direct interest in the questions at issue, proceed to consider the matter as a purely private controversy.
The attorney general contends that this proceeding is not a special proceeding, but is a civil action, and, consequently, that it should be brought in the name of the real party in interest, i, e., in the name of the Dakota Hail Association of Plankinton, S. D., and should not be brought in the name of the State of North Dakota ex rel., etc.; citing Comp. Laws 1887, §§ 4830, 4870, 5005, 5518; 14 Amer. & Eng. Enc. Law, p. 217, and cases cited. Section 4830 in terms refers only to "actions at law and suits in equity," as such actions and suits existed prior to the innovations made by the reformed procedure. No reference is made to a special proceeding. See Comp. Laws 1887, §§ 4810, 4812. Section 4870 'declares that "every action must be prosecuted in the name of the real party in interest," etc. This obviously has reference exclusively to those remedies formerly had by an action at law or by suit in equity, and we think it would be a violation of the plain intent of the statutes to extend its meaning so as to include special proceedings which are not mentioned in § 4870, but on the contrary, are regulated by distinct and special proceedings of the statute. Comp. Laws 1887, §§ 5505, 5536. The attorney general also cites the following authorities: State v. Marston, 6 Kan. 524; Bobbett v. State, 10 Kan. 15; State v. Board, 11 Kan. 67; People v. Pacheco, 29 Cal. 213; Territory v. Cole, 3 Dak. 301, 19 N. W. Rep. 418. Doubtless these cases, especially that cited from California, with others from that state not cited, tend to support the position taken by the attorney general. With respect to the territorial case, it will be noticed that the case seems to turn upon the non-residence and non-official capacity of the relator, rather than upon the question how the procedure should be entitled. The use of the name of the territory is not criticised in the opinion. In the state of Kansas the statutes regulating the remedy by mandamus differ materially from those of this state. The Kansas enactments pointedly recognize the
