remedy as a civil action by repeatedly referring to the parties as "plaintiff" and "defendant." Gen. St. Kan. 1889, pars. 4809, 4811. The statutes of Iowa, in express terms, make the remedy an action, and authorize the action to be brought in the name of either the state or a private party, according to the nature of the case. McClain, Ann. St. $§ 3373, 3385. Authorities based on these statutes are not in point in this state, as we have no such statutes. It must be conceded, however, that there is authority of great weight sustaining the position of the attorney general, but we think the better authority and better reason is the other way. We have found no precedent in the reported cases decided by the late territorial supreme court for omitting the name of the sovereign in any mandamus case. We can see no good likely to result from changing the established practice in this respect, and, on the other hand, a change not based on a new and well-considered statute would, in our opinion, tend to much confusion in the practice, and thereby greatly impair the usefulness of the writ.
We think the statutes regulating special proceedings give countenance to the existing practice. Comp. Laws 1887, § 5518, 5527. We therefore hold that the name of the state was properly inserted in the title of this proceeding. High, Extr. Rem. § 430. We still add, as a guide for future cases, that the name of the state should be inserted in the writ in connection with the name of the relator in all cases whether the matter is one in which the state as such is strictly a party in interest or not, or whether the question is one of public concern or a purely private dispute. The statutes of the state have assimilated the mandamus proceeding to a civil action, but lave not made it a civil action, as is done in the case of quo warranto. Comp. Laws 1887, §§ 5345, 5361. We think it will be proper to add, with a view to settling a very embarrassing and much controverted question of practice, that in cases where the state, as such, is directly interested as a party, the attorney general should apply for the writ, or in some manner signify his assent to the proceeding; but on the other hand, where the controversy does not concern the state, as such, but does concern a large class of citizens in common, as, for example, the citizens
