dissenting:
-1 am obliged to dissent from the judgment of the court in this ease.
I have not the time, nor do I consider it important, to review the statutes and decisions of the several States relating to the general subject of quo warranto proceedings. The provisions of our Code (secs. 1538—1541 [31 Stat. at. L. 1419, 1420, chap. 854]) speak for themselves.
Those sections are copied in the opinion of the court, and will be here stated in substance only. Section 1538 authorizes the writ to issue against a person who unlawfully exercises a franchise or public office, or an office in any domestic corporation; and against persons exercising corporate rights or franchises not authorized by the laws of the District. Section 1539 authorizes the attorney general or the district attorney to institute the proceeding on his own motion, or on the relation of a “third person.” Plainly this third person, upon whose information the law officers may act, is not required to have any special interest in the matter of the inquiry. Whether they shall institute the proceeding on their own motion or upon the relation of the third person is a matter entirely within the discretion of the law officers; except that in the latter case leave of the court must also be obtained and security given for costs.
If the law officers refuse their consent the “third person” cannot institute the proceeding. Section 1540 provides, however, that, if the officers refuse to act upon the request of a “person interested,” “such person” may apply to the court for leave, etc. In my opinion the intent is here plainly expressed to limit the right to institute the proceeding, without the consent of the law officers, to an “interested person;” that is to say, to such third person only who may have and show a special interest in the matter of the inquiry.
The function of the legislature is to enact laws; that of the ju*102diciary to interpret them where they need interpretation. The 'intention of Congress seems to me too plainly expressed to leave room for interpretation. Hence there is no occasion to examine the statutes of other jurisdictions relating to quo. warranto proceedings, the language of which Congress did not adopt, of the decisions interpreting them, to ascertain the intention of Congress.
Under the peculiar municipal organization of the District of Columbia, the government is in Congress, the commissioners being merely its agents. They are invested with no- general legislative powers; they do not levy taxes or fix the rate thereof. It is true that good government depends, in a measure, upon the honesty and efficiency of these agents of Congress, and the residents of the District are all interested, as are all residents _ of municipalities in general (though not to the same extent) in good government.
This is a general public interest concerning taxpayers, as such, no more than other residents.
' Taxpayers, it is true, are sometimes permitted to enjoin the making of contracts or the fixing of burdens upon property; but in such cases it is apparent that they have a special property interest to assert and protect. There is no such question involved here.
Relating to the question, who shall exercise the office of commissioner of the District, the interest of the taxpayer is in common with all other residents.
In other words, it is a public interest the conservation of which is entirely under the control of the attorney general or the district attorney.
Public policy in this regard is for the determination of Congress exclusively. I see nothing negativing these views in the case of Union P. R. Co. v. Hall, 91 U. S. 343, 354, 23 L. ed. 428, 432.
In that case the relators were shippers of freight over the railway, and had, therefore, an interest peculiar to themselves and others similarly situated. Moreover, it was a proceeding for a writ of , mandamus the rules governing which were not *103governed by statute, and are different from those governing quo warranto. It has become in modern practice substantially nothing more than an action at law; the consent of the attorney general no longer being an essential. Dancy v. Clark, 24 App. D. C. 487, 497, and cases there cited; Bundy v. United States, 25 App. D. C. 459, 462.
Section 1541, so far as it relates to public; office, is practically inoperative under the laws now governing the selection of district officers. It may, possibly, govern a proceeding where an officer in a private corporation may he involved. In such case the relator is required to set forth specially the facts upon which he claims to be entitled to the office. I perceive no hearing that this section has upon this case.
I base my dissent upon the sole ground that the independent relator is not an interested person within the meaning of the statute, and is not, therefore, entitled to maintain this action without the approval of the attorney general or the district attorney, to whom the interests of the public are intrusted.