In the decision of this appeal, the order in. which the case is presented in the briefs of counsel will not be followed. Neither will time and space be taken to review the interesting history of quo warranto proceedings with -which the court is favored. The law as regards the general scope of such proceedings at common law is too well settled to require going back to its origin and tracing it down to the present time in order to make a proper application thereof to the facts alleged in the complaint, under our statutory substitute for the common-law proceeding.
It is conceded that unless the privileges granted by the city of Portage to construct, maintain, and operate, a system ■of waterworks within its corporate limits, and use the streets .and alleys of the city for that purpose, constitute a franchise emanating from sovereign authority, this action will not lie either under the statutes or independent of them.
Counsel for appellant say the grant contained in the waterworks ordinance is not a franchise within the meaning of that designation of a legislative grant. There, is authority for that contention, and much authority against it. This court has several times spoken on that subject in no uncertain language. The law in that regard is so firmly settled here that it is useless to go elsewhere for guidance, ns what follows amply shows.
In State ex rel. Att'y Gen. v. Madison St. R. Co.
In Wright v. Milwaukee E. R. & L. Co.
In Stedman v. Berlin,
The cases cited where common-law terms are used, as that the franchise can be forfeited only by quo warranto or scire facias, must be read in connection with sec. 3463, Stats. 1898, which provides that all remedies heretofore obtainable by writs of sai/re facias and quo warrcmto, and by proceedings by information in the nature of quo warranto, may be obtained by civil action, and that it shall not be necessary to sue out ■such writs in form.
We may properly remark in passing, that it is not supposed that the terms “franchise of the corporation” and “ corporate franchise,” when used in the cases referred to, were intended to refer to corporate franchises, strictly so called,— franchises essential to corporate existence and granted as part of the organic act of incorporation, and that can be forfeited only by quo warrcmito proceedings or the statutory substitute therefor to vacate the charter of the corporation, — but the terms were used in that broad sense applicable to all franchises which a corporation may lawfully acquire. Much confusion often happens from a failure to distinguish between those franchises that are corporate in a strict legal sense and not really property of the corporation, and franchises acquired by a corporation after corporate existence commenced, that it may part with if they be assignable, or be deprived of without corporate existence being affected, and which may survive the death of the corporation. We should further remark in this connection that an action may be brought against a domestic corporation under sec. 3241 to forfeit its existence for abuse of public duty assumed by it under a franchise not corporate and to reclaim such franchise, as was said in State ex rel. Att'y Gen. v. Madison St. R. Co.
A question is raised as to the jurisdiction of the circuit court where a writ of quo warrcmto, or proceedings by information in the nature of quo warranto, were necessary at common law, upon the theory that the use of such writ and proceeding's is an exercise of sovereign authority. That is sufficiently answered by sec. 8, art. VII, of the Constitution, and previous decisions of this court. Such section confers upon the circuit courts original jurisdiction in all matters, civil and criminal, within the state, not excepted by the constitution and not prohibited by law, together with power to issue writs of hateas corónos and mandamus, injunction, quo warranto, and oertiorari. Jurisdiction of proceedings for the relief obtainable at common law by writ of quo wcur-ranto, or by proceedings by information in the nature of quo warranto, is neither excepted from the general grant of power mentioned, anywhere in the constitution, nor is it prohibited by law; therefore the court has such jurisdiction. The general grant of original jurisdiction is substantially without limit by,anything found in the constitution, over all actions, civil and criminal. The scope of this general grant of authority was said in Putnam v. Sweet,
But it is said that this action cannot be brought under sec. 3241, because that only authorizes an action to be brought by the attorney general to vacate the charter and the existence of a private corporation created under the laws of this state, and that the appellant is a foreign corporation. That must be conceded. Such is the wording of the statute. It
It is further said that the action cannot be brought under sec. 3466, and that there is no other statute referring to the subject. Sec. 3466 provides that, “ An action may be brought by the attorney general in the name of the state, upon his own information or upon the complaint of any private party, against the parties offending, . . . when any person shall usurp, intrude into, or unlawfully hold or exercise any . . . franchise within this state.” It is said that this statute was taken from 9 Anne, ch. 20, sec. 4, and that when so taken the English construction was that it only authorized proceedings against an individual or individuals, and as regards .offices or franchises in corporations. It may be admitted that the construction of the English statute by' the English courts is as claimed, and that it extends only “ to instances affecting those rights between party and party,” — so said by Lord MaNsfield in Rex v. Williams, 1 Burrows, 402. It may also be admitted that the language of our statute, in the main, came indirectly from 9 Anne, ch. 20, sec. 4, but it is not true that this state adopted the English statute in sec. 3466, or language of the same import, or that our statute is governed by the construction given by the English courts to the statute of Anne. Our statute came from New York. Att'y Gen. v. S. & St. C. R. Co.
Our statute provides that, “An action may be brought by the attorney general in the name of the state upon his own information or upon the complaint of any private party against the parties offending, . . . when any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or cony franchise within this state, or any office in a corporation created by the authority of this state.” Stats. 1898, sec. 3466. There is no word of limitation to be found, relating to franchises, as in the statute of Anne. It covers, in its literal sense, any franchise within this state, without regard to whether it is a corporate franchise or not.
True, as claimed by counsel for appellant, secs. 3211 and 3406 are found in close connection in the Laws of 1850, ch. 120, sec. 3241 being there sec. 334 and sec. 3406 being there sec. 336; but there is no connection whatever between the two sections as originally adopted. There is nothing in sec. 3466 which indicates in any Avay that it refers only to corporate franchises. Inasmuch as the law' of 1856 was aimed at all civil remedies and was intended to establish a complete system of procedure in civil matters, it is not reasonable to say that a remedy for wrongs, as regards franchises other than corporate franchises, was omitted; yet such was the result of the legislative effort if appellant’s counsel are correct in their contention. It cannot be contended but that the natural meaning of the word “fran
If we go further and look to the meaning -of the act as understood in New York at the time of its adoption here, Ave reach the same result. Thompson v. People ex rel. Taylor,
It was said in effect, in People ex rel. Att'y Gen. v. Utica Ins. Co., supra, that any privilege which was a franchise by the English common laAV is a franchise in New York, and that if a corporation unlaAvfully attempt to exercise such a franchise it can be proceeded against in an action brought by the people in the name of the state under the section we have discussed.
In Thompson v. People, supra, where it was sought to forfeit a bridge franchise owned by an individual, for breach of a condition upon which it was granted, it was said that
Much that we have said regarding the construction of the word “ franchise ” applies to the word “ person ” in sec. 3466. It cannot be questioned but that the word “ person ” in a legislative enactment applies to an artificial person when it is clear that such was the legislative intent, both by statutory rules of construction (sec. 4971, Stats. 1898) and elementary principles as well. Chippewa Valley & S. R. Co. m. C., St. P., M. & C. R. Co.
We have not failed to give attention to the claim that :some courts elsewhere, having statutes similar to sec. 3466, have construed them as extending no further than the statute of 9 Anne, ch. 20, sec. 4. It is sufficient to say that we are precluded from being guided by such authorities, because a contrary construction of our statute, in the state from which we adopted it, is a part of the statute the same as if it were embodied therein in the most unmistakable language. Moreover, as said in the New York case, it cannot be seriously doubted but that at the common law this action would lie regardless of the statute of Anne, and it «cannot be doubted but that all the jurisdiction the English
Proceedings to' forfeit franchises were common in England centuries before the statute of Anne. That was, in the main, a mere regulation of procedure. It did not cover the whole subject, and did not add anything to the law as it. had existed theretofore, except to give the right to institute the proceedings to a private relator, so that wrongs could be remedied “ as between party and party.” In 7 Comyn, Dig. 190, 191, it is said that “privileges and immunities of a public nature, which cannot be exercised without legislative authority, are franchises;-” and that “a quo warranto is in the nature of a writ of right for the king aguinst him who usurps or claims any franchises or liberties, to say by what authority he claims them.” A large number of authorities will be found there cited covering a long period of time prior to the statute of Anne, and supporting the literal meaning of the text we have quoted.
In Peter v. Kendal, 6 Barn. & C. 703, an action for damages for the disturbance of a ferry franchise, it was argued that the plaintiff failed to show title to the franchise; that being out of possession there was no presumption of ownership because of the fact that the plaintiff once exercised the right; because it might have been inquired into and reclaimed by sovereign power by quo warranto. The court held that proceedings by quo warranto, where the right was. extinguished, were proper only where the party proceeded against was in the illegal possession of the franchise; but that something more than mere negligence was necessary to destroy the right, because that may be waived, yet for mere negligence, even, the crown might repeal a grant by scire facias or quo warranto.
The question of whether proceedings by quo warranto are-proper against a corporation to merely annul a franchise not
Some minor questions are discussed in the brief of counsel for appellant, to which we have not referred and which are not necessary to a decision of the appeal. The conclusion we have reached, and which must follow from what has been said, is that this action wras properly brought, that the demurrer to the complaint was properly overruled, and that such order must be affirmed.
By the Court.— So ordered.