dissenting.
I must dissent from the opinion of the majority.
It seems quite clear to me that the plaintiff is not the proper party to maintain this suit in that he has not sufficient interest therein. If the plaintiff’s complaint is construed as seeking a mandatory injunction (and I am unable to construe the complaint in any other manner) to compel the defendant officers, who constitute the State Board of Health, to make available for inspection certain data which they have gathered relating to atomic radiation fallout, then the plaintiff stands in the same position as every other member of the public.
It is hornbook law that if a mere public right is to be vindicated, in the absence of statute, the action must be brought by a public officer charged with the duty of enforcing the law. Fields v. Wilson, 186 Or 491, 207 P2d 153; Winslow v. Fleischner et al., 110 Or 554, 223 P 922; Friendly v. Olcott, 61 Or 580, 123 P 53; State ex rel v. Dunbar, 48 Or 109, 85 P 337; State ex rel v. Lord, 28 Or 498, 43 P 471; Sherman v. Bellows, 24 Or 553, 34 P 549; 28 Am Jur 680, Injunctions § 178.
The plaintiff herein shows no right different from the public which would grant this court or any court jurisdiction to determine the issue presented on its merits.
I am also convinced that the plaintiff has mistaken his remedy and that a court of equity had no jurisdiction to proceed therein.
The purported complaint seeks to compel the officers of the State Board of Health to do an act alleged to be enjoined upon them by law. I have been unable to find any cases where a court of equity has *60ever granted the extreme remedy of a mandatory injunction to compel the doing by a state officer of a ministerial act.
ORS 34.110 provides:
“A writ of mandamus may be issued to any inferior court, corporation, board, officer or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station; but though the writ may require such court, corporation, board, officer or person to exercise its or his judgment, or proceed to the discharge of any of its or his functions, it shall not control judicial discretion. The writ shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of the law.”
Mandamus is an action at law. City of Cascade Locks v. Carlson, 161 Or 557, 90 P2d 787; Beard v. Beard, 66 Or 512, 133 P 797, 134 P 1196.
Therefore, since the plaintiff has an adequate remedy at law provided by legislative enactment, a suit for mandamus may not be maintained in a court of equity. This is the rule, according to the clear weight of authority, where a person seeks relief of a mandatory nature. 28 Am Jur 537, Injunctions § 42; 93 ALR 1495. See also Kane v. Walsh, 295 NY 198, 66 NE2d 53, 163 ALR 1351.
If the matter is to be considered upon its merits, then I would sustain the trial court upon two grounds.
First, I do not believe that data being collected by an authorized body for the purpose of formulating rules and regulations are, at least until the duties of the body have been performed, public writings under ORS 192.010, or records and files under ORS 192.030.
It seems clear to me that both of these sections refer to records which are either required to be kept *61by law or records which the law may be said to require to be kept to fully disclose the necessary operations of a state or municipal office.
“The people’s right to know” must be limited to their right to investigate the conduct of their affairs. It cannot be deemed to go to the right to pry into the substance of the data being acquired to carry out a duty which the people have delegated to their officers.
Secondly, I would sustain the action of the trial court upon grounds developed in the majority opinion: “There may be circumstances under which the information contained in a record may be justifiably withheld from the person seeking it.”
The plaintiff in this case states his reason as follows:
“A Well, the purpose is really multiple. As one trained in plant physiology, which is very closely allied to other physiology, and as one who is studying genetics, I am particularly aware of the fact that any and all radiation is harmful to all human beings.
“It is not just my conclusion, but a conclusion that has been voiced by a committee of geneticists acting for the National Science Foundation, who wrote a report which was submitted to the President and which has been published.
“Because of the hazards of radiation, and because of the published statements that atom bomb tests were being conducted, and the knowledge that these atom bomb tests produce radioactivity material, I was anxious to find out how much of that radioactive material was falling here in Portland, what it was doing to our health, to our rain water, and foods, and drinking water. In other words, I wanted to know anything I could find out about how much additional radiation I, and my family, and the people of Portland, were subjected to as a consequence of the atom bomb tests then going on and the ones that had gone on in the past.
*62“The reasons I wanted this information were several. I wanted it simply for my general knowledge because I am interested in scientific matters, and this would come within that field. Because of its potential danger to my family, and to myself, I wanted to know its magnitude in order that I might determine what, if anything, could be done, and what the urgency was in doing it.
“Furthermore, I felt that in my position as a scientist my position was somewhat unique, not as compared with other scientists but with the general public, in that I was in a position to apply this information more intelligently than the general public, and that it was my duty to give any information I could to the people to help them so that they would know of the dangers and take whatever steps were appropriate to protect themselves.” (Italics supplied.)
From the foregoing, it must be noticed that the trial court had before it a man who admitted he was not qualified to properly analyze the effect of the radioactive fallout data gathered, either upon plants or people, but who believed that any and all radiation is harmful to all human beings. This is of course contrary to all of the bulletins issued by the Federal Government and the act under which the Board of Health was authorized to act. ORS 453.620.
The plaintiff was also, with his lack of knowledge, planning to set himself up as a public informant and adviser. With his admitted lack of knowledge, this could only lead to public misinformation and perhaps to public panic.
Under these circumstances, in my opinion, the public interest outweighed the rights of the individual and the trial court quite properly dismissed the plaintiff’s case.
I would affirm the judgment of the trial court.