121 Cal. 522 | Cal. | 1898
This is a proceeding by quo warranto to exclude the defendants from all corporate rights. The demurrer to the complaint was overruled, and answer filed. When the case was called for trial defendants moved for judgment on the pleadings, on the ground that the complaint did not state facts sufficient to constitute a cause of action, “for the reason that the pleading only averred that the defendants were usurping the functions of a corporation, there being no allegation of the particular circumstances constituting such usurpation.” The motion for a nonsuit was denied. Judgment passed for plaintiff, and defendants now appeal from that judgment, and also from the order denying their motion for a new trial.
It is insisted that the complaint is fatally defective in not alleging specifically the acts constituting the usurpation. Many eases are cited to support this contention, but a sufficient answer to them is found in the fact that they are not eases of quo warranto. In a proceeding prosecuted by the state, of the character here inaugurated, it is sufficient to allege the ultimate fact, namely, that the defendants are exercising the franchise without authority of law. (People ex rel. Samuell v. Cooper, 139 Ill. 461; People ex rel. Dickson v. Clayton, 4 Utah, 431, and cases there cited.)
The trial court found that the board of supervisors had no jurisdiction to form the district, and that the district was not legally organized. The most serious objection to the validity of the organization of the district rests upon the publication of the petition of the landowners for its formation. By section 30 of the act of the legislature (Stats. 1867-68, p. 507) the petition is required to be published “for four weeks next preceding the hearing thereof in some newspaper published in the county.” As to the character of the publication made in this case, the affidavit of the printer is as follows: “That a true copy of the annexed petition (which is made part of this affidavit) has been published in said paper (the Sacramento ‘Daily Record’) once a week for four weeks, commencing the fifth day of December, 1871, to and including the second day of January, 1873.” Do the facts set out in this affidavit fill the measure required by the statute? In other words, was the petition published four ¡weeks next preceding the hearing thereof? The hearing of the
It is claimed that the petition is void upon its face in this: that it appears therefrom that the names of some of the owners of land were attached to it by other parties. If these names were signed under express authority of the owners of the land, then the signatures were those of the owners. In passing upon, the merits of the petition the genuineness of these signatures Was a matter essentially within the power of the board of supervisors to decide. And the approval of the petition by the board was an adjudication of the fact, an adjudication that was absolutely conclusive. (Humboldt Co. v. Dinsmore, 75 Cal. 604; Farmers' Bank v. Board of Equalization, 97 Cal. 318.)
For the foregoing reasons the judgment and order are reversed.
Van Fleet, J., McFarland, J., and Harrison, J., concurred.
TEMPLE, J., dissented, concurring in the opinion heretofore rendered in Department.
The following is the opinion abovei referred to by Mr. Justice Temple, rendered in Department One on the 10th of November, 1897:
This is a proceeding by quo warranto to exclude the defendants from all corporate rights. A demurrer to the complaint was overruled and defendants answered. When the case was called for trial defendants moved for judgment on the pleadings on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that, though.
. Judgment passed for plaintiff upon the trial, and defendants appeal from the judgment and from the order denying motion for new trial.
1. Defendants contend that the complaint is insufficient because it states only a conclusion of law, and does not state any reason why the defendant corporation is invalid, and that it is-settled law in this state that in quo warranto proceedings the.complaint must allege specifically the defects in the formation of the corporation. (Citing People v. Board, etc., 27 Cal. 655; Hedges v. Dam, 72 Cal. 520; Spaulding v. Wesson, 84 Cal. 141; Ohm v. San Francisco, 92 Cal. 450.) None of the cases cited were quo warranto cases.
It seems to he well settled that an information to oust a pretended municipal corporation from the exercise of corporate franchises need only allege that such corporation is exercising them without lawful authority. It was said in People v. Cooper, 139 Ill. 461, that “the sole purpose of the information is to require the defendants to show by what warrant they are holding and exercising the office.....The rule of pleading in cases of this character is that, where an information is filed to test the question of intrusion or usurpation of an office, it is sufficient to allege generally that the defendant is in possession of the office without lawful authority.” The rule thus stated is sustained by ample authority. (High on Extraordinary Legal Remedies, sec. 713; Palmer v. Woodbury, 14 Cal. 43; Flynn v. Abbott, 16 Cal. 359; Enterprise v. State, 29 Fla. 128; People ex rel. Kern v. McIntyre, 10 Mont. 166; People ex rel. Dickson v. Clayton, 4 Utah, 421.) In the last-mentioned case the question is fully considered and the authorities reviewed. The only exception we have found is where the information is not by the attorney general, hut is upon the relation of a private person contesting the disputed office. (State ex rel. Cooper v. Hamilton, 29 Neb. 198.)
3. The court found that the board of supervisors had no jurisdiction to form the district, and that it was not legally organized. This finding is sought to be sustained by plaintiff upon several grounds, only one of which we deem to possess merit.
• The petition was heard January 3, 1872. From December 5 th to January 2d, both days inclusive, there were exactly four weeks. “A week consists of seven consecutive days.” (Pol. Code, sec. 3258.) If the publication had been in a weekly paper, commencing on December 5th, and had been repeated on the 12th, 19th, 26th, and January 2d, it would have satisfied the statute. It was in a daily paper, however, and the affidavit does not show the intervening days on which publication was made; nor that it was made in each issue of the paper. It states that the petition was published once a week for four weeks, commencing December 5th, to and including January 2d. Giving the affidavit the very liberal construction that the publication is shown to have occurred at regular intervals of one week, which is the utmost that can be said of it, was this sufficient? The question is presented': Where the statute is silent as to the number or frequency of publications required, but requires publication of the petition in some newspaper “for four weeks next preceding the hearing thereof,” is publication once a week in a daily newspaper sufficient?
' The question was suggested in Williams v. Sacramento County, 58 Cal. 237, where a similar statutory requirement of publication in a similar case was before the court, but the point was not decided. It was held, however, that “the. statutory publication was one of the jurisdictional steps in the proceedings, and unless the petition was published in accordance with the requirement of the statute all of the subsequent proceedings were invalid.” In Hellman v. Merz, 112 Cal. 661, the question was in
The first week began Tuesday, April 5th, the second Tuesday, April 13th, and the third Tuesday, April 19th, and had the-publication been made in a weekly paper issuing on these days-the notice would undoubtedly have been good, for it would have-appeared in each issue of the paper and for two weeks successively next before the day of sale. But it was in effect held that publication in a daily paper did not impart notice from week to-week (as it would have done had the statute read once a week-for two weeks), otherwise the notice published on the 19th would have authorized the sale on the 31st. It follows that the notice-given in the present case was not sufficient, as it clearly appears-to have been published only once a week in a daily paper.
3. Defendants claim that the state is estopped to question the validity of the corporation; that defendants have been permitted to expend their means in reclaiming the land, and, without the intervention of trustees and in their own way, have-been suffered for twenty years to enjoy the fruits of their labor- and the advantages of the corporation, and to now deprive them of these would be a wrong for which no compensating benefits to the state or anyone are shown. No facts were set up in the answer by way of estoppel, and none appear in the record which could by any possibility have the effect to conclude the state-
The judgment and order should be affirmed.
Searls, C., and Belcher, C., concurred.