Upon the relation of private parties, with the consent of the attorney general, this court issued a writ of quo warranto to test the validity of the annexation of certain territory by the village of Mound in Hennepin county.
We are concerned with three areas in the immediate vicinity of Lake Minnetonka: (1) The village of Mound; (2) the unincorporated community known as Spring Park, which lies east of the village of Mound (hereinafter called Spring Park); and (3) the annexation territory herein consisting of approximately 37 acres of the industrial district of Spring Park, plus 7.65 acres in the form of a 100-foot-wide railroad right of way which extends about five-eighths of a mile westward from such Spring Park industrial tract until it connects with the village of Mound. In other words, the 37-acre industrial portion of the area purported to have been annexed has no connection with the territory proper of the village of Mound other than by the railroad right of way which has been included in the annexation area. There is no residential dwelling on any part of the annexed territory.
Relators, who reside in Spring Park but outside the annexation territory above described, on September 6, 1919, signed a petition for the incorporation of the village of Spring Park to consist of approximately 82% acres — inclusive of the 37-acre industrial district involved in these proceedings. This petition, after the county commissioners had approved it and ordered an election to determine the matter, was, on September 27, 1919, in an action commenced by two of the corporate respondents herein, dismissed by the district court as legally defective and void, but without prejudice to the right to file another petition.
On October 1, 1919, before relators had filed another petition for the incorporation of Spring Park, the four corporate respondents herein, namely, Minnetonka Properties, Inc., the J. R. Clark Com
Prior to the adoption of such amendatory ordinance by the village council of Mound, relators on October 3, 1949, submitted to the board of county commissioners of Hennepin county, a new petition for the incorporation of Spring Park (inclusive of the 37-acre industrial area). No action on this petition was taken by the county board by reason of the conflicting annexation proceedings of the village of Mound.
On January 28, 1950, this court, upon an information filed by relators with the consent of the attorney general, issued a writ of quo warranto directing the village of Mound, its officers, and the corporate respondents herein to show by what warrant said village and its officers assumed to hold and exercise jurisdiction over the territory purportedly annexed on or about October 1, 1949, and on October 6, 1949. Thereafter a referee was appointed pursuant to M. S. A. 546.33 to take testimony and to make findings of fact and conclusions of law with reference to all issues.
The referee made and filed his findings of fact and conclusions of law that the petition of October 1,1949, for annexation of the indus
We are concerned with these issues:
(1) Does a private citizen, with the consent of the attorney general, have the right to use the writ of quo warranto to test the legality of annexation proceedings?
(2) Is a private corporation, as a signatory of a petition for annexation, a proper party respondent in quo warranto proceedings brought to challenge the validity of an annexation?
(3) Does a writ of quo warranto lie prior to the time a village has acted upon a petition for annexation?
(4) Where the territory to be annexed and the annexing village do not abut upon each other in any other manner than that they are located at opposite ends of an actually used and occupied railroad right of way — which is 100 feet wide and about five-eighths of a mile long and which is included as a part of the annexed territory — is such territory, pursuant to § 412.041, subd. 1, so conditioned as properly to be subjected to village government?
There has been considerable confusion as to how and when a private citizen will be permitted to institute quo warranto proceedings in this court. Since the American law adopted the common-law writs as modified by pre-Revolutionary statutes, we must fully understand the effect of these statutes to solve current problems involving the writ of quo warranto.
2
The common-law quo warranto “served as one of the main weapons of the Crown to prevent a dispersal of its powers of government through the claim of
The procedure for obtaining a statutory writ of quo warranto is not identical in all respects with the common-law procedure for •filing an information in the nature of a quo warranto. In an action under § 480.04 for a writ of quo warranto, as under the common law, no summons or complaint is necessary. Where the application for the writ is made by the attorney general ex officio, the public interest requires that the writ issue.
14
Where, however, the issuance of the writ is sought by a private individual with the consent of the attorney general — only in a few very restricted circumstances is the attorney general’s consent not necessary
15
— the private individual must petition the court for leave to file an information
for
a writ of quo warranto.
16
The granting or withholding of leave to file an information
for
a writ of quo warranto at the instance of a private individual, with or without the consent of the attorney
Does a private citizen, however, with the consent of the attorney general, have the right to use the writ of quo warranto to test the validity of
annexation proceedings?
Where the party aggrieved may obtain full and adequate relief in either a common-law or equitable action, a writ of quo warranto is not available.
22
Some authorities hold that the proper remedy for persons specifically interested in or affected by annexation proceedings is an injunction.
23
Speaking in regard to these authorities, our court in State ex rel.
“The theory of these cases seems to he that the mere de facto annexation of territory to a municipal corporation or quasi corporation is always absolutely void as to every one, and can always be attacked collaterally in any action or proceeding in which the question of the status of the territory may be material. We cannot subscribe to that doctrine. It may be that, immediately or shortly after the attempted annexation of the territory, a person specially affected thereby would be allowed to attack such alleged annexation collaterally, and enjoin the officers of the municipality to which it was claimed to have been annexed from exercising jurisdiction over it. As to that we express no opinion. But after such attempted annexation has been confirmed by user, taxes have been levied, expenses incurred, and other rights and liabilities have been created, we are clearly of the opinion that a de facto annexation may exist, which can only be questioned by the proper state authority in a direct proceeding for that purpose.”
The distinction is not valid. Immediately after an annexation proceeding has been completed, a de facto annexation exists; rights and liabilities have necessarily been created. To permit private individuals to question collaterally the validity of annexation proceedings at any time thereafter would cause serious consequences to public and private interests. 24
The information in the nature of quo warranto has undergone a “broadening process of evolution, becoming more elastic in process with a view to accomplishing a purpose characteristic of American and English constitutional law, that for every wrong there should be a remedy.”
25
In our jurisdiction, the writ of quo warranto at
Is a private corporation, as a signatory of the petition for annexation, a proper party respondent in this proceeding? Since there are no statutory provisions or rules of practice to the contrary, objections to parties in quo warranto proceedings should be taken at the time and in the same manner as prescribed for such objections in civil proceedings generally. 31 Relators contend that respondents’ motion to quash the writ as to the private corporations is based on an alleged defect of the parties (§ 544.08, subd. 1[4]), which respondents have waived pursuant to § 544.03, subd. 3. Relators’ argument is without merit, in that a defect of parties means “only the failure to join those who should have been included” 32 and not the joinder of improper parties.
Our writ of quo warranto — the modern information in the nature of a quo warranto — may be defined as a proceeding to correct the usurpation, misuser, or nonuser of a public office or corporate franchise
33
; and the objects to be attained by our modern remedy are identical with those which were secured by the ancient writ.
34
The writ, as used here, commanded respondents to show by what right, “quo warranto,” they exercised jurisdiction over the annexed territory and over the petition for additional annexation. The private corporations, as petitioners, could not, and did not, exercise jurisdiction over the annexation proceedings. Pursuant to § 412.041, subd. 4, only the village council has the authority to issue an ordinance annexing land upon petition by owners for inclusion, and then only, if it determines “that the annexation will be to the best interests of the village and of the territory affected.” Quo
Here, respondents moved at the outset of the hearing before the referee to strike as respondents the following: Minnetonka Properties, Inc., Streater Industries, Inc., J. B. Clark Company, and Great Northern Bailway Company. The referee herein did not have the power to quash the writ as to any of the respondents. The misjoinder of defendants in a quo warranto proceeding, however, is an irregularity which may be corrected at any time before or after judgment of ouster is entered by striking out the name of the party improperly joined. 35 At this time, the writ is quashed as to the following respondents: Minnetonka Properties, Inc., Streater Industries, Inc., J. B. Clark Company, and Great Northern Bailway Company.
Bespondents contend that until a village council has acted upon a petition for annexation a writ of quo warranto does not lie. The writ of quo warranto is a remedy used to correct — among other things not relevant here — usurpation, misuser, or nonuser of a franchise of a municipal corporation. 36 In Webster’s New International Dictionary (2 ed.) (1947), “usurpation” is defined as “unauthorized arbitrary assumption and exercise of power”; “misuser” in law is defined as “use unlawfully in excess of, or varying from, one’s right”; and “nonuser” in law is defined as “failure to use or exercise any right or privilege.”
By the writ of quo waranto herein, respondents were in part commanded to show by what warrant the village of Mound and its
We turn from the procedural issues to a disposition of the case on its merits. Is the territory involved in these annexation proceedings so conditioned as properly to be subjected to village government within the meaning of § 412.041, subd. 1, which provides :
“Territory abutting on any village and not included in any other village or in any city or borough may be added to the village in the manner prescribed in the following subdivisions if so conditioned as properly to be subjected to village government.” (Italics supplied.)
We have not heretofore construed the above section. In State ex rel. Smith v. Village of Gilbert,
The annexation of additional territory to a village, pursuant to § 412.041, involves the exercise of a legislative function delegated to the village by the legislature. As long as such legislative function of annexation is exercised by the village within the scope of its delegated powers, and in a reasonable manner, as distinguished
As applied to the instant case, the function of annexation was not exercised in a reasonable manner or within the scope of the power delegated to the village. As a result, the territory which it attempted to annex is not so conditioned as to be properly subjected to village government. As already noted, the main body of the territory is located about five-eighths of a mile from the village and does not abut thereon except by an elongated stem or isthmus which at all times has been, and now is, used and occupied as a railroad right of way. No motor vehicle or pedestrian can lawfully,
41
safely, or as a practical matter use the railroad right of way in passing from the village to the annexed territory. In other words, the area sought to be added does not
by means of any usable territory
abut upon the village so as to permit travel to and fro without passing over lands wholly outside the village. Wild v. People ex rel. Stephens,
In view of our holdings that the territory sought to be annexed is not properly conditioned for village government, it is unnecessary to pass upon the question of whether all property owners with respect to the railroad right of way area signed the petition for annexation. 42
Let a writ of ouster issue to the village of Mound and to its officers and council members as to the territory described in its annexation ordinances of October 1, 1949, and October 6, 1949. The writ is discharged with respect to the other respondents.
So ordered.
Notes
See,
e. g.,
discussion of the history of the writ of quo warranto in State ex rel. Young v. Village of Kent,
Riesenfeld, Bauman, and Maxwell, Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 33 Minn. L. Rev. 569, 571.
3 Blackstone, Commentaries, 264; see, Rice v. National Bank,
Riesenfeld, Bauman, and Maxwell, Judicial Control of Administrative Action by Means of the Extraordinary Remedies in Minnesota, 33 Minn. L. Rev. 569, 571.
For a discussion of this development, see 3 Blackstone, Commentaries, 263 ; Jenks, The Prerogative Writs in English Law, 32 Yale L. J. 523, 528.
Aspects of the Action Quo Warranto in Iowa, 31 Iowa L. Rev. 255.
9 Anne, c. 20 (12 Stat. at Large, p. 190).
10 Ency. Laws of England, p. 631.
State ex rel. Young v. Village of Kent,
10 Ency. Laws of England, p. 632.
See article by Riesenfeld, Bauman, and Maxwell, supra, 33 Minn. L. Rev. 572-575, for the statutory development of the regulation of the writs in Minnesota.
State ex rel. Young v. Village of Kent,
State ex rel. Bell v. Moriarty,
State ex rel. Wells v. Atwood,
State ex rel. Young v. Village of Kent,
State ex rel. Young v. Village of Kent,
State ex rel. Arpagaus v. Todd,
See records for State ex rel. Arpagaus v. Todd,
State ex rel. City of St. Paul v. Oehler,
5 Dunnell, Dig. § 8073a. For a discussion of the common-law procedure for filing an information in the nature of a quo warranto, see 10 Ency. Laws of England, pp. 638-639.
Dennistoun v. Davis,
People ex rel. Farrington v. Whitcomb,
Cf. State ex rel. Childs v. Board of Co. Commrs.
State ex rel. Town of Stuntz v. City of Chisholm,
State ex rel. Childs v. Village of Fridley Park,
State ex rel. Childs v. Board of Co. Commrs.
State ex rel. Town of Stuntz v. City of Chisholm,
State ex rel. Northern Pump Co. v. So-ealled Village of Fridley,
Under the common law, an information in the nature of quo warranto at the instance of a private party would not be granted against a corporation as a body. 10 Ency. Laws of England, p. 632. Nor could it be filed by a private relator to determine whether a corporate body had usurped its statutory powers. The only remedy was by intervention of the attorney general. 10 Ency. Laws of England, p. 632.
State ex rel. City of St. Paul v. Oehler,
2 Pirsig’s Dunnell, Minn. PI. § 1636.
High, Extraordinary Legal Remedies (3 ed.) § 591.
High, Extraordinary Legal Remedies (3 ed.) § 591.
See, Lewis & Pickering v. C. W. Williams & Sons,
High, Extraordinary Legal Remedies (3 ed.) § 591.
Cf. High, Extraordinary Legal Remedies (3 ed.) § 619.
See, State ex rel. v. Minnetonka Village,
See, State ex rel. Hilton v. Village of Kinney,
State ex rel. Northern Pump Co. v. So-called Village of Fridley,
See, M. S. A. 621.31; Hanks v. G. N. Ry. Co.
See, Village of Wayzata v. G. N. Ry. Co.