(203 P.) sidered cases cited by defendant. 19 Std. | expended. But suppose he had not been a Ency. Pro. 248; High, Extraordinary Legal taxpayer or resident of the district at all Remedies (3d Ed.) 420; Eby v. Board of in other words, did not come within the School Trustees, 87 Cal. 166, 25 Pac. 240; class of persons in any sense specially inYoung v. Regents of University of Kansas, terested in the relief applied for, as is the 87 Kan. 239, 124 Pac. 150; Sterling v. Re- case with plaintiff here could he have maingents Univ. of Mich., 110 Mich. 369, 68 N. tained the action on the theory that he was W. 253, 34 L. R. A. 150. See, also, Bobbett v. interested as a citizen in seeing that the State, 10 Kan, 9; Webster v. Common Coun- law was enforced? It is a moot question, cil of San Diego, 8 Cal. App. 480, 97 Pac. 92; and one which, perhaps, the writer ought not Pearsons v. Ranlett, 110 Mass. 118; Smith v. to attempt to answer. This, however, may City of Saginaw, 81 Mich. 123, 45 N. W. 964; be said-perhaps without transgressing the In re Wellington, 16 Pick. (Mass.) 87, 26 Am. rules of propriety-if the Crockett Case had Dec. 631; Scripture v. Burns, 59 Iowa, 70, been as hypothetically stated, instead of be12 N. W. 760; State v. Eberhardt, 14 Neb. ing as it appears in the published report, it 201, 15 N. W. 320; Heffner v. Commonwealth, is by no means certain that the conclusion 28 Pa. 108; Ellis v. Workman, 144 Cal. 113, reached by the court would have been the 77 Pac. 822; Colnon v. Orr, Treasurer, 71 same. We have no reason to think it would Cal. 43, 11 Pac. 814; Fritts v. Charles, 145 from any adjudicated case with which we Cal. 512, 78 Pac. 1057. are familiar. In support of plaintiff's contention that he 's a proper party to make application for the writ, his counsel refer us to People v. Harris, 203 Ill. 272, 67 N. E. 785, 96 Am. St. Rep. 304; High on Extraordinary Legal Remedies (3d Ed.) 431; County of Pike v. People ex rel. Metz, 11 Ill. 202; City of Ottawa v. People, 48 Ill. 223; Frantz v. Wyo County Court, 69 W. Va. 734, 73 S. E. 328; Wampler v. State ex rel. Alexander, 148 Ind. 557, 47 N. E. 1068, 38 L. R. A. 829; 18 R. C. L. 325. The paragraphs referred to by plaintiff from High on Extraordinary Legal Remedies and Ruling Case Law, supra, seem to hold that the weight of authority sustains the right of a private citizen to institute mandamus proceedings to enforce a right which pertains to the public at large in which the applicant may have no peculiar interest. The correctness of this proposition, as shown by many of the cases above cited, is seriously disputed, yet, conceding it to be true, I have found no case in my investigation of the question which sustains the right where the demand is made in the interest of a class merely, and where the applicant is not a member or representative of the class. Therefore it seems to me that to hold in favor of plaintiff's contention in the instant case would be to apply the rule to cases to which it has never heretofore been applied in any jurisdiction of the country. In a very recent decision by this court (Crockett v. Board of Ed. of Carbon Co. School Dist. 199 Pac. 158) it was held that a resident citizen and taxpayer was beneficially interested, and therefore authorized to institute mandamus proceedings to compel the school district to publish an annual statement of its receipts and disbursements of money, as provided in Comp. Laws Utah 1917, § 4614. Being a resident and taxpayer of the district, he was beneficially interested as such in being informed as to the amount of money the district had received and the particular purposes for which it had been 203 P.-41 There seems to be no present necessity for inaugurating an innovation in the instant case. Any widowed mother of the class mentioned, for whose relief the law was enacted, would undoubtedly have the right to apply for a writ of mandate to compel an enforcement of the law. Any attorney authorized to represent the county, district, or state would have the right, and any person upon whom legal demand might be made to furnish support to such widowed mother or her minor children would in law be considered beneficially interested within the meaning of the statute, and therefore authorized to institute the proceeding. We do not assume in advance to suggest, except tentatively, who might be authorized to apply for the writ in a case of this kind. We are, however, decidedly of the opinion that it should be a person whose relation to the case is something more than that of a mere resident or taxpayer of the county. To hold in the present case that plaintiff being a resident taxpayer of Utah county is all that is necessary to qualify him to prosecute the action is, in our view of the law, to disregard and set at naught the statute which provides that the applicant should be a party beneficially interested in the proceeding. We are firm in our conviction that the law sought by plaintiff to be enforced is a humane, wholesome, beneficent statute and should be conscientiously and faithfully enforced in every county in the state. Nevertheless, for the reasons stated, it becomes our duty to deny the writ prayed for in the complaint. The peremptory writ is therefore denied. Each party to pay his own costs. WEBER, GIDEON, and FRICK, JJ., concur. CORFMAN, C. J. I dissent. I am in full accord, however, with the reasoning and the conclusions arrived at by Mr. Justice THURMAN, wherein he holds that the board of county commissioners failed to perform a duty that our statutes specifically enjoin, and that mandamus will lie to compel them to perform such duty. It is the interpretation of our statutes, and the holding that before the plaintiff in mandamus can maintain the action he must show that he has some peculiar or distinct interest separate and apart from that of a member of the community or body politic in general, to which I am unable to give my assent. In so far as the same may be material here, our statutes with respect to the issuance of the writ provide: "It may be issued by the Supreme Court, or by a district court or a judge thereof to any * * board, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a` right * * * to which he is entitled and from which he is unlawfully precluded by such Comp. Laws Utah * board. 1917, § 7391. Section 7392 provides: "This writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It must be issued upon affidavit, on the application of the party beneficially interested." In this case there is no question but that the plaintiff seeks to compel the performance of an act on the part of the county commissioners which the law specially enjoins, and that the case is one in which there is no plain, speedy, and adequate remedy at law. | The prevailing opinion so finds. To my mind it is equally clear and certain that the plaintiff is seeking to compel the admission of himself to the use and enjoyment of a right to which he is entitled, and from which he, as a resident, citizen, and taxpayer (conceded to be such) is unlawfully precluded by rea son of the failure of the commissioners to act. legislation, illegal, and a wrongful invasion of the rights of the taxpayer. But, as to the legality of the act sought to be enforced here, this court has already passed upon that in D. & R. G. R. R. v. Grand County, 51 Utah, 294, 170 Pac. 74, 3 A. L. R. 1224, referred to in the prevailing opinion. In that case we said, speaking through Mr. Justice Gideon, the writer of the opinion: "Having in mind the public welfare by assisting in surrounding children of tender years with home associations, with the care and nurture of their natural protector, the mother, the Legislature by this act has determined that to be a policy of the state. Such being the object of the act, this court would not be justified in declaring the act invalid and that the funds so used are not used for a public purpose." (Italics mine.) Ordinarily, at least, a resident and taxpayer, such as the plaintiff here is conceded to be, is interested in every "public purpose." Moreover, he has a very great and substantial right to be. As a citizen, aside from mere altruistic principles, he necessarily is interested in seeing that dependent children do not become human derelicts or a charge upon the state. As a taxpayer, paying taxes, he has the right to demand that the revenues collected are directed to the proper channels and used for the purposes for which they are levied and collected. That he is materially benefited and beneficially interested in seeing that done there can be no doubt. As I view the statute providing for and directing that a fund be created in the several counties of the state for the relief of dependent mothers, the objects to be attained come under the police powers of the state. In the exercise of these powers the county commissioners of the several counties are charged with a purely public duty, that of creating a fund to be used for the relief of dependent mothers. In Union Pac. R. R. Co. v. Hall et al., 91 U. S. 355, 23 L. Ed. 428, it is said: Nowhere in the statutes is it said that the "In this country there is diversity of decision relator must have some peculiar or distinct upon the question whether private persons can interest separate or apart from that of the sue out the writ to enforce the performance community in general. The kind or degree of of a public duty, unless the nonperformance of the interest which the relator must possess in it works to them a special injury; and in sevorder to maintain mandamus is not specified. eral of the states it has been decided that they If the Legislature had intended that the here a prerogative writ, has been supposed to cannot. An application for a mandamus, not right to the writ should be limited to a par- have some analogy to a bill in equity for the ticular class, receiving direct benefits, presum-restraint of a public nuisance. Yet, even in ably it would have said so. The prevailing the supposed analogous case, a bill may be susopinion seems to hold that within the mean- tained to enjoin the obstruction of a public ing of our statutes the only persons benefi- highway, where the injury complained of is cially interested and entitled to the writ are common to the public at large, and only greater * * There those who belong to a class to be directly in degree to the complainants. * benefited by its issuance—in this case wid- is, we think, a decided preponderance of Amerowed mothers and their dependent children. ican authority in favor of the doctrine that If that be true, then the "Dependent Mothers enforce a public duty, not due to the governprivate persons may move for a mandamus to Act" (Comp. Laws 1917, §§ 3960-3968) which ment as such, without the intervention of the the plaintiff asks to have the commissioners government law officer. [Citing cases.] comply with is nothing but a species of class principal reasons urged against the doctrine are The (203 P.) that the writ is prerogative in its nature-a, would be before this court in precisely the reason which is of no force in this country, same situation as that of the plaintiff-seekand no longer in England-and that it exing to have the fund created which the law poses a defendant to be harassed with many directs-and would be entitled to no other suits. An answer to the latter objection is relief than an order of this court compelling that granting the writ is discretionary with the court, and it may well be assumed that it the board to act. will not be unnecessarily granted." 18 R. C. L. § 273, states the rule thus: "Although in the case of an application for mandamus, where private or corporate rights are affected, the relator must show an interest, the rule established by the preponderance of authority is that, where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result; it being sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced"-citing many cases supporting the text.. In State of Nebraska ex rel. Stanley Thompson v. City of Kearney, 25 Neb. 262, 41 N. W. 175, 13 Am. St. Rep. 493, the Nebraska court states the rule, quoting from the syllabus, to be: "The rule that, when the question presented is one of public right, and the object of the action is to enforce the performance of a public duty, it is sufficient for the relator to show that he is a citizen, and as such is interested in the execution of the laws, applies more particularly to cases where the failure to perform the duty affects all the members of the community alike. Where private or corporate rights are affected, then the relator must show an interest." * Some few states, it is true, particularly California (Ashe v. Supervisors, 71 Cal. 236, 16 Pac. 783) hold to the contrary, and that the phrase "beneficially interested" means such an interest shown in the relator as is separate and apart and distinguishable from that of the mass of the community. Those states hold that the writ is purely a prerogative writ. As hereinbefore pointed out, it is by the great weight of authority not now so considered nor regarded. Mandamus is in the nature of a civil remedy. In the present case the plaintiff comes seeking to enforce that which he conceives to be the right of every person-to seek redress before the courts-to compel the proper observance of a statute on the part of the county commissioners, which, as pointed out in the prevailing opinion, said commissioners have failed to observe. In my judgment that which he seeks is not only a substantial right, but one that cannot justly be denied. The right of the citizen in governments like ours to see that the laws of the state are properly enforced and public rights respected by public officers is a legal right, and one which the courts should take cognizance of in every proper case. If our courts are closed to the citizen in cases like the present one it is difficult to conceive how the interests of the public generally are to be safeguarded. It is fair to assume that dependent widows have no financial means with which they might employ lawyers and pay court fees. Unless some public-spirited citizen seeks redress there is no redress. Our organic law provides: "All courts shall be open" and "no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party." It will not do to suggest that the district attorney or county attorney or some other public official, as distinguished from a private citizen, may prosecute in a case like the one at bar, for it is very clear that a public offi cer would not be any more "beneficially in terested" than any other citizen. I fully ap preciate that courts may and should be somewhat guarded in granting writs of this nature through fear that the merely curious and inquisitive might unduly vex and hamper public officers in the proper discharge of the The plaintiff here has no special interest duties pertaining to their offices; but the nor private right to be subserved. Neverthe-courts have the power and discretion to deny less he is beneficially interested to the ex-applications of such a nature, once they are tent of a taxpayer in seeing that the laws are before them, and there can be no just preobeyed and properly executed. In this par- sumption that they would not do that. ticular case a public duty is not being performed by the county commissioners. A public right is being ignored. It may be well to leave the right to compel performance to the dependent widows, but it would seem that if an interested citizen and taxpayer seeks compliance with the statutes, the courts, in the interests of common justice and public rights, ought not to hold that he is not beneficially interested within the meaning of the statute, and leave the enforcement of the law to the dependents. Moreover, had a dependent widow brought the present action, she In this case, however, it is conceded that the defendants ought to comply with the statute and create the fund that the plaintiff seeks to have created. Therefore it would seem that if he is denied mandamus in this case it must be for a purely technical reason, and not upon any substantial ground whatever. The plaintiff here seeks to have defendants perform that only "which the law specifically enjoins as a duty resulting from an office." That ought to be the right to which every citizen is entitled under a government like ours, one in which there is no sovereign, but | servant, it is incumbent upon the beneficiaries the whole people. to prove that death resulted from an accident arising out of and in the course of deceased's employment. Then again, the statute reads: "It may be issued * to compel the admission of a party to the use and enjoyment of a right to which he is entitled and from which he is unlawfully precluded by such * board." To deny mandamus in the present case is to deny a citizen the right to the compelling process of the courts, where the defendants are not only found clearly derelict in their official duties, but it also precludes plaintiff from seeking redress in the courts when his individual rights as a citizen and taxpayer are being denied him, Plaintiff's rights as a citizen may differ from those directly bene 4. Master and servant 417(7)-Findings on evidence creating "probability" not reviewable under Compensation Act. If there is any substantial evidence sustaining conclusions reached by the Industrial Commission in a proceeding under the Workmen's Compensation Act, though it be slight, and though it may seem unsatisfactory to the Supreme and district courts, the award made must stand, and in this connection a finding of the Commission may properly rest upon "probability," which is created when there is more evidence in favor of its existence than against it 3 (citing Words and Phrases, First and Second Series, Probability). 5. Master and servant ~405 (4) Evidence held to show compensable injury by electric shock. In a proceeding under Workmen's Comof a servant, evidence held sufficient to suspensation Act to obtain compensation for death fited by the fund which he here seeks to have the defendants in their official capacity create, but, nevertheless, the Legislature and not the courts should be left to determine the degree in which he must be "beneficially interested" to entitle him to the compelling process for which he applies. Upon that sub-tain a finding of the Industrial Commission that ject, the Legislature, wisely I think, has not spoken. I am firmly convinced that under the admitted facts of the present case mandamus should lie. (59 Utah, 306) death in the tunnel of a mine resulted from coming in contact with a charged electric wire while deceased was at work in the course of his employment. Appeal from District Court, Salt Lake County; P. C. Evans, Judge. Proceeding by Mabel Allsop and others un BINGHAM MINES CO. et al. v. ALLSOP der the Workmen's Compensation Act to obet al. (No. 3668.) 1 Geo. A. Lowe Co. v. Ind. Com., 190 Pac. 934. Ind. Com. of Utah v. Evans, 52 Utah, 394, 174 Pac. 825; Garfield Smelting Co. v. Ind. Com. of Utah, 53 Utah, 133, 178 Pac. 57; Geo. A. Lowe Co. v. Ind. Com. of Utah, 190 Pac. 934; Ind. Com. of Utah v. State Road Com., 190 Pac. 544; McVicar v. Ind. Com. of Utah, 191 Pac. 1089; Varoukas v. Ind. Com., 191 Pac. 1091; Utah Fuel Co. v. Ind. Com. of Utah, 194 Pac. 122; Littsos v. Ind. Com. of Utah, 194 Pac. 338. tain compensation for the death of Samuel Straup, Nibley & Leatherwood, of Salt WEBER, J: On October 26, 1917, Samuel Francis Allsop died in a mine tunnel of the Bingham Mines Company, at Lark, Utah, while in the employ of that company. He left surviving him a wife and two minor children. Application was made to the Industrial Commission for compensation, claiming that Allsop was killed by an accident arising out of and in the course of his employment by the Bingham Mines Company. Upon a hearing the Commission found that Allsop came to his death by reason of an accident in the mine of the Bingham Mines Company, and compensation was awarded in the sum of $4,500. On writ of review the record was certified to the district court, and on such review the award was affirmed, the court finding from the evidence that had been adduced before the Commission that the McVicar v. Ind. Com. of Utah, 191 Pac. 1089. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (203 P.) death of deceased was caused by an electric shock accidentally received by him while at work in the mine in the course of his employment, and that the finding of the Commission that the deceased came to his death by reason of an accident arising out of and in the course of his employment was sustained by the evidence. From a judgment entered by the district court plaintiffs appeal. The first assignment of error urged by appellants raised the question of whether the award can stand, since the Commission failed to make a finding as to the cause of death or what, if any, accident was sustained by the deceased, or, in other words, whether the mere conclusion stated by the Commission, that death was caused by reason of an accident arising out of and in the course of the employment, was sufficient to sustain the award. [1] In Geo. A. Lowe Co. et al. v. Industrial Com., 190 Pac. 934, this court held findings of fact by the Commission not legally essential to a valid award. That language was not intended as mere dictum. We have repeatedly suggested to the Commission that it is advisable to make findings of the ultimate facts in each case, but we have never held, and do not now hold, that such findings are essential to a valid award. [2-4] Appellants insist that there is no competent, substantial evidence in the record that the deceased had sustained any personal injury by accident arising out of and in the course of his employment, and that there is no competent, substantial evidence that he came in contact with an electric wire in the tunnel and suffered death from an electric shock. As stated by appellants, the question whether there is any substantial evidence to support an award is a question of law and to ascertain whether there is some substantial evidence supporting the award is the only purpose of a review in this court. Ind. Com. of Utah v. Evans, 52 Utah, 394, 174 Pac. 825; Garfield Smelting Co. v. Ind. Com. of Utah, 53 Utah, 133, 178 Pac. 57; Geo. A. Lowe Co. v. Ind. Com. of Utah, 190 Pac. 934; Ind. Com. of Utah v. State Road Com., 190 Pac. 544; McVicar v. Ind. Com. of Utah, 191 Pac. 1089; Varoukas v. Ind. Com., 191 Pac. 1091; Utah Fuel Co. v. Ind. Com. of Utah, 194 Pac. 122; Littsos v. Ind. Com. of Utah, 194 Pac. 338. It was incumbent upon the beneficiaries to prove that the death resulted from an accident arising out of and in the course of deceased's employment. If, however, there is any substantial evidence sustaining the conclusion reached by the Commission, though it be slight and though it may seem unsatisfactory to us, the award made must stand. As stated in McVicar v. Ind. Com., supra, the Commission's conclusions are like the verdict of a jury, and will not be interfered with by this court when supported by some substantial evidence. The same rule is ap plicable in the district court upon its review of the evidence. Appellants insist that "a finding under the Workmen's Compensation Act [Comp. Laws 1917, §§ 3061-3165] cannot rest upon mere conjecture, probability, or possibility." With the elimination of the word "probability" the quoted statement is unobjectionable and meets with our approval. However, there can be no doubt about the proposition that a finding of the Commission may properly rest upon probabilities. The word "probable" is defined in Bouvier's Law Dictionary, vol. 3, page 2728, as, "having the appearance of truth; appearing to be founded in reason." Courts have defined "probable" as meaning, "Having more evidence for than against" (3 Words and Phrases, Second Series, 1223) and, "A probability of the existence of a thing is created when there is more evidence in favor of its existence than against it" (6 Words and Phrases, 5617). [5] The concrete question in this case, therefore, is whether the evidence indicates that the deceased probably came in contact with the electric wiring in a mine tunnel, and whether the resulting shock caused or contributed to his death. The deceased was a mine foreman. On the day of his death he went to work at about 8 o'clock in the morning, and did his work as usual. At 1:30 p. m. he ate his lunch. His death occurred at about 3 o'clock. At about that time he was in the tunnel and gave orders to one of the miners to attend to some duty, and from five to seven minutes after that he was found in a dying condition on the left-hand side of the mine tunnel. A live electric wire was on the right-hand side of the tunnel. The wire carried about 450 volts. Ore was being taken out of different raises, loaded into cars on a track in the tunnel. At the place where Allsop was found, and where he died, the tunnel was about 6 feet 5 inches wide, and about 6 feet 5 inches high. The track was laid about the center of the tunnel. The distance from the top of the rail to the electric wire was 6 feet 2 inches so that the deceased, who was 5 feet 9 inches in height, could not come in contact with it by accident unless he stood on something or unless he raised his hand or carried something in his hand which would extend above his head. Dr. Odell arrived at the scene of the accident a few minutes after Allsop's death. He had known deceased for three or four years, but had never treated him, in his office or elsewhere, and so far as he knew deceased had never shown any symptoms or indication of inability to work. Dr. Odell testified that when he found the deceased his throat and mouth were filled with saliva and ejected food. He further testified as follows: "If the current went through the respiratory organs it would cause a sort of strangulation. It would produce the very effect that I found |