People ex rel. Hudson v. DeMill

| Mich. | Jan 14, 1867

Cooley J.

It is commonly a source of regret when, a court is compelled to dispose of the case before it without passing upon the main questions raised; but the nature of the record in the present case is such as to leave us no alternative. We are clearly of opinion that the information is fatally defective in two particulars.

It is defective, firstly, in not showing in what manner the organization in which the defendants are accused of having usurped office became a body corporate. When any person, or association of persons, is charged with usurping the franchise of a corporation, it is sufficient for the Attorney General to call upon them, in general terms, to show by what authority they claim the right to exercise such franchise; but when the very nature of the proceeding is such as to assume the actual existence of a corporation, and it is alleged that defendants usurp some authority therein, no ground whatever is shown for calling upon defendants to show their right until it is made to appear that a corporation exists. The claim to a corporate franchise, which does not exist in fact, may be a great public wrong, demanding immediate redress; but the claim to an office in a corporation which has no existence, can hardly be a matter of public concern, unless accompanied with the attempt to exercise a corporate franchise; in which ease the remedy would be an information, not for the unlawful intrusion into an office, but for the usurpation of the franchise. The information in a case like the present must, therefore, show that a corporation exists; for until that is shown, it is not made to appear that there is any office into which the defendants can intrude. The precedents in proceedings against public officers, are not applicable, in all particulars, to the case before us; since those are cases where the courts must judicially take notice of the existence of the offices, and no allegations are necessary to show how they were created.

The statute under which this information is filed — Comp. L. § 5291 — authorizes this proceeding in the case of usurpation of office “ in any coi’poration created by the authority of this state.” The information avers, in the words of the statute, that the corporation known as the “ The Rector, Wardens and Vestrymen of St. Paul’s Church, in the city of Detroit,” of which the defendants claim to he wardens and vestrymen, is “a corporation created by the authority of this stateand we might infer it to be the view of the pleader that the statute establishes a rule of pleading; whereas, in our opinion, it only points out the cases in which an information may be filed, leaving the mode of showing that the case is one within the statute, to be governed by the rules of pleading before in force.

Where a corporation has been created by special charter, we do not regard it necessary, though perhaps usual, to do more in the information than to aver its existence in general terms; since the court is bound to take judicial notice of the charter — Comp. L. § 2, clause 18 — and is thus informed of the actual corporate existence. But as the body in question has no such charter, and if it exists as a corporation at all, must have been constituted such under some general law of the territory or state, by acts in pais, it is obvious that there is nothing upon the face of this information by which the court can see that the allegation that the church is a corporation, is true in fact. The bare averment that it is one, is but a conclusion of law drawn by the pleader, but which the court ought to have the means of drawing for itself from the facts set forth.

We were referred upon the argument to several cases in which it has been held that when the state calls upon one to show cause why he claims to exercise a corporate franchise, or to possess a public office, the allegations of the Attorney General may be of the most general character, while the defendant is required to set forth specifically, and with particularity, the grounds of his claim, and the continued existence of his right. — People v. Mayworm, 5 Mich. 148; People v. River Raisin & Lake Erie R. R. Co. 12 Mich. 398. We have no disposition to qualify these decisions in any way. The state has always a right to demand of any one assuming a public office or franchise to show his authority therefor; but the state has no concern with the unfounded claims which parties may make to an office not existing in fact. The existence of the corporation in the present case is a jurisdictional fact which must be set forth; while there was no corresponding jurisdictional fact to be alleged in the cases cited. The right to file information, in those cases depended solely upon the discretion of the Attorney General; while in this case there must be corporate existence, or he is not authorized to call upon defendants to show ground for their claims. Jurisdiction appearing, the facts relating to the usurpation or intrusion may be alleged here as they were in those cases, in very general terms; and similar allegations to those referred to in the cases cited have not been objected to in the present case.

There is also a broad distinction in respect to this particular point' between the cases now before us, and those cited by counsel from' the federal decisions, where the question related to the averment of citizenship, where one of the parties was a corporation. That question affected either personal rights to sue, or personal exemptions from being sued in the particular court; and the fact was one of which the court would take no notice in any stage of the case unless it was specially put in issue. But here the fact of corporate existence is the basis of any authority at all in the court to act in respect to the subject of controversy, and it is not one in respect to which there can be a waiver by the parties. This proceeding by information is of a prerogative character, to enable the court to see that privileges or franchises granted by or pertaining to the sovereignty of the state are not usurped, intruded upon or abused; and it pertains to the dignity of the court to see that parties do not use it, even by consent, for private purposes. If the general allegation employed in this case were sufficient, and the proof could be waived by the parties, it would be easy to impose upon the court the disputes as to offices in voluntary associations, in no way affecting prerogatives of sovereignty, and to which this proceeding has no application whatever.

But if this were not a jurisdictional defect, there would still be reasons why the mode in which the corporation became such should be pointed out. Although the statute says the information may be filed against “any person” usurping office in “ any corporation,” created by authority of this state, yet there must be very many oases in which the court would be at liberty to refuse to listen to the controversy. When the proprietors of a country store, or the members of a village library association, or the participants in a district school debating society, or an association of musical amateurs, may incorporate themselves under our general laws, and establish various grades of offices for the purposes of their organization, it can scarcely be seriously urged that the Supreme Court can be. required to settle all their contested elections and appointments in this proceeding. There are grades of positions denominated offices which do not rise to the dignity of being entitled to the notice of the Attorney General by information, if in fact there be not corpoi’ations which are not within the intention of the statute — upon which we express no opinion. An ixxformation filed in a case not proper for the consideration of the court, it should have the opportunity to dismiss in soxne preliminary stage of the case; and for that reason, if for no other1, it ought to have the facts set forth which would direct it to the law authorizing the corporation, prescribing its functions, and indicating the powers and duties of its officers. We ought to be able to see whether the office is one provided for by the statute, or whether, instead, it is created by some derivative authority; so that we may draw the line of distinction between those which are “ offices ” within the meaning of -the statute, and those which are rather the positions of agents or servants merely.

But the information is bad secondly, because of misjoinder of parties, and of causes of complaint. It may be proper that the two parties claiming to be wardens should unite in a proceeding to test the right of those in possession, and that the eight vestrymen should do the same. This might depend upon the mode of election. But no mode of election or appointment could authorize persons claiming different offices to unite their complaints and seek to determine the title to both offices in one proceeding, without a statute specially permitting it. There is no such statute in this state, and the difficulties in the way of making it of service are so great, that it could hardly be desirable that one should be passed. It is just as competent to test in one suit the right to the offices of sheriff and tréasurer of a county, as to those of wardens and vestrymen in a church. They may derive tlieir title from the same election, and the questions in dispute may be the same; but this is no more than will often happen when several offices of the same municipality are in contest at the same time. The misjoinder is as fatal as it would be for two persons having distinct and separate claims for trespasses committed by two others, to join in a suit to recover damages therefor. The similarity of. duties in the two offices, or the fact that the incumbents participate in the same duties, if such be the fact, can not change this fundamental rule in pleading.

We are of opinion that the demurrer is well taken. As on the ground of the misjoinder, if for no other reason, an amendment could not be allowed, the judgment must be final.

Christiancy J. and Martin Ch. J. concurred. Campbell J. being a party, did not sit in this case.