The relators have petitioned for a rehearing. In their petition they assert that certain objections which they raised as to the validity of the 1937 state tax levy, were not determined in the former opinion; and, they say that it is "important that all questions relating to the validity of the 1937 state tax levy be determined at this time." It is also said that "the uncertainty as to the validity of the levy will of necessity result in considerable litigation and numerous suits." The contentions thus advanced by the relators seem to be predicated upon the theory that this is what is ordinarily known as a "taxpayer's suit," and they would have merit if this were so, but this is not a "taxpayer's suit," as that action is known in our jurisprudence. What is known as a "taxpayer's suit" may not be instituted in the Supreme Court. The Supreme Court has no jurisdiction to hear and determine it except on appeal. Such suit must be brought in the district court which, by the constitution, is vested with "original jurisdiction . . . of all causes both at law and equity." The jurisdiction vested in a district court extends to all suits whether brought by an individual for himself or for a class and whether it is brought against an individual, against public officers, against a political subdivision or against the state itself. The original jurisdiction which the constitution vests in the Supreme Court does not extend to an action or proceeding instituted by or for the benefit of private individuals to vindicate private rights even though such action or proceeding is predicated upon an alleged invasion of rights by public officers. In considering the respective grants of jurisdiction to the district court and to the Supreme Court in Guilford School Dist. v. Dakota Trust Co. 46 N.D. 307, 178 N.W. 727, this court said:
"Our constitution provides:
`The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control *Page 184 over all inferior courts under such regulations and limitations as may be prescribed by law.' N.D. Const. § 86.
"`It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall have authority to hear and determine the same; provided, however, that no jury trial shall be allowed in said Supreme Court, but in proper cases questions of fact may be sent by said court to a district court for trial.' N.D. Const. § 87.
"`The district courts shall have original jurisdiction, except as otherwise provided in this Constitution, of all causes both at law and equity, and such appellate jurisdiction as may be conferred by law. They and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, quo warranto, certiorari, injunction, and the other original and remedial writs, with authority to hear and determine the same.' N.D. Const. § 103.
"There can be no difference of opinion as to the intention of these constitutional provisions. They clearly define the proper sphere of the district and supreme courts. As was said by this court in State ex rel. Poole v. Nuchols, 18 N.D. 233, 236, 119 N.W. 632, 20 L.R.A.(N.S.) 413: `These sections (Const. Sections 86 and 87) constitute a grant of power and are restrictive in their terms. Hence this court possesses such jurisdiction, and only such, as is either expressly or by necessary implication granted to it by said sections.' By the plain terms of these sections the Supreme Court is precluded from exercising original jurisdiction, except in those particular matters wherein the Constitution expressly confers such jurisdiction."
It has been definitely settled and declared by the decisions of this court that the original jurisdiction of the Supreme Court can be invoked only in behalf of and in the name of the state itself. Even when instituted by a private relator it is not the private relator's suit; but is the suit of the state.
Considerations which will warrant or require the exercise of equity jurisdiction or entitle a party to invoke extraordinary remedies, do not of themselves operate to bring a controversy within the original jurisdiction of the Supreme Court. That jurisdiction can be invoked *Page 185 and exercised only when a cause is presented of the character to which the jurisdiction applies.
This court has repeatedly declared that the original jurisdiction may be exercised only where the sovereignty of the state or its franchises or prerogatives or the liberties of its people are affected. To repeat, "before the court will, in the exercise of its original jurisdiction, issue prerogative writs there must be presented matters of such strictly public concern as involve the sovereign rights of the state or its franchises or privileges. . . . To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to some subdivision of the state, but affecting the state at large in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character." State ex rel. Steel v. Fabrick, 17 N.D. 532, 536, 117 N.W. 860.
The original jurisdiction does not depend upon the number of parties interested, or upon the amount in controversy, but upon the nature of the questions involved and the rights affected. The character of an original proceeding, and the distinction between a taxpayer's action and an original proceeding in the Supreme Court are well pointed out by the Supreme Court of Wisconsin in State ex rel. Bolens v. Frear, 148 Wis. 456, 134 N.W. 673, 135 N.W. 164, L.R.A. 1915B, 569, Ann. Cas. 1913A, 1147.
The Wisconsin court said:
"This transcendent jurisdiction is a jurisdiction reserved for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises or the liberties of its people; the state uses it to punish or prevent wrongs to itself or to the whole people; the state is always the plaintiff and the only plaintiff, whether the action be brought by the Attorney General, or, against his consent, on the relation of a private individual under the permission and direction of the court. It is never the private relator's suit; he is a mere incident; he brings the public injury to the attention of the court, and the court, by virtue of the power granted by the Constitution, commands that the suit be brought by and for the state. The private relator may have a private interest which may be extinguished *Page 186 (if it be severable from the public interest), yet still the state's action proceeds to vindicate the public right. The fact that in many cases, as for example cases of unlawful imprisonment, the private wrong and the public wrong are so closely identified that the ending of the private wrong necessarily puts an end to the public wrong, makes no difference with the principle.
"These propositions, if correct, and we believe they are, demonstrate very clearly that there can be no such thing as a taxpayer's action (as that action is known in the circuit courts) brought in the Supreme Court within the original jurisdiction. The philosophy of the taxpayer's action in the circuit court is that the taxpayer is a member of a municipal corporation, who, by virtue of his contributions to the funds of the municipality, has an interest in its funds and property of the same general quality as the interest of a stockholder in the funds of a business corporation, and hence when corporate officers are about to illegally use or squander its funds or property he may appeal to a court of equity on behalf of himself and his fellow stockholders (i.e. taxpayers) to conserve and protect the corporate interests and property from spoliation by its own officers.
"The taxpayer himself is the actual party to the litigation and represents not the whole public, nor the state, nor even all the inhabitants of his municipality, but a comparatively limited class, namely, the citizens who pay taxes. In short, he sues for a class.
"No such thing is known in the exercise of the original jurisdiction of this court. In actions brought within that jurisdiction the state is the plaintiff and sues to vindicate the rights of the whole people."
Inasmuch as an original proceeding in this court can be maintained only where the matter involved affects the sovereign rights of the state or its franchises or prerogatives, or the liberties of the people, it naturally follows that ordinarily the application to this court for a prerogative writ should be made by the Attorney General as the chief law officer of the state. However, the failure of the Attorney General to make such application is not a bar; and where the Attorney General refuses to institute the proceeding, the court, when the facts warrant, may and will grant a private relator leave to institute it. But in no case (except in a habeas corpus proceeding) can or will the original jurisdiction be exercised on the application of a private relator unless *Page 187 the Attorney General has been requested to move and has refused or unreasonably delayed so to do. State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561; State v. Nelson County, 1 N.D. 88, 45 N.W. 43; State ex rel. Moore v. Archibald, 5 N.D. 359, 66 N.W. 234; State ex rel. Erickson v. Burr, 16 N.D. 581, 113 N.W. 705. See also Anderson v. Gordon,9 N.D. 480, 83 N.W. 993.
In applying to this court for leave to institute this proceeding the relators submitted as proof of the fact that they had requested the Attorney General to institute the proceeding, and that he had refused to do so, a written request to the Attorney General signed by the relators, and a statement of the Attorney General in writing refusing to accede to the request.
The request of the relators and the response of the Attorney General were as follows:
"The undersigned residents and taxpayers of the State of North Dakota request you, as Attorney General of the State of North Dakota, to commence original mandamus proceedings in the Supreme Court of the State of North Dakota, to compel the State Board of Equalization and the State Tax Commissioner to correct and reduce the 1937 state tax levy from 6.1 mills in the aggregate to 4 mills, as required by the State Constitution.
"Dated this 1st day of November, A.D. 1937.
"John Conrad, R.D. Ward, W.H. KaDell, C. Gibson, Oscar Herum, John Dawson, and Harrison Garnett."
"The undersigned, Attorney General of the State of North Dakota, declines to commence mandamus proceedings against the State Board of Equalization and the State Tax Commissioner, as requested in the above and foregoing request."
It is apparent from the request that the only matter the relators called to the attention of the Attorney General as a basis for the proposed original proceeding was the alleged violation of § 174 of the state constitution. It was such alleged violation by the members of the State Board of Equalization that they requested the Attorney General to formally present to the Supreme Court in an original proceeding as "raising a contingency requiring the interposition of the Supreme *Page 188 Court to preserve the prerogatives and franchises of the state in its sovereign character." It was not even suggested that any action had been taken that infringed upon the sovereign rights of the state or affected its franchises or prerogatives in any other particular. Obviously persons may not present to the Attorney General a request to institute a proceeding on one state of facts or on one ground and then, upon the refusal of the Attorney General, institute a proceeding as private relators upon a wholly different state of facts or upon wholly different grounds.
In their petition in this case the relators asserted that the defendants, members of the State Board of Equalization, had levied state taxes for the year 1937 exceeding by more than fifty per cent the limit fixed by § 174 of the state constitution. This was the primary and basic ground asserted in the petition as the reason why the writ of mandamus should issue.
As has been pointed out, the alleged violation of § 174 of the state constitution was the only matter the relators called to the attention of the Attorney General as justifying or requiring him to invoke the original jurisdiction of this court. The first question therefore which presented itself for determination in this proceeding was whether the State Board of Equalization had levied taxes in excess of the limit fixed by § 174 of the state constitution. Because it was only in the event that the constitution had been thus violated that there was any claimed basis for the exercise of the original jurisdiction and the issuance of a prerogative writ to direct or control official action. State ex rel. Atty. Gen. v. Cunningham, 81 Wis. 440, 51 N.W. 724, 15 L.R.A. 561.
After careful consideration we reached the conclusion that the state tax levy for 1937 was not in excess of the limit fixed by § 174 of the state constitution. The conclusion thus reached was decisive of the proceeding. It constituted a determination of the only question that the relators had requested the Attorney General to present to this court for determination; it determined the only question that was presented by the relators in their petition, which, in the judgment of this court, warranted or justified the exercise of the original jurisdiction.
We have again considered the questions discussed and determined in *Page 189 our former decision. Further reflection has not changed the views there expressed. We adhere to those views and reaffirm them. A rehearing is denied.
MORRIS, BURR and NUESSLE, JJ., concur.