127 So. 704 | Miss. | 1930
Lead Opinion
The state, on the relation of Arthur Jordan, district attorney for the Fourth judicial district of this state, in which the city of Greenwood, in Leflore county, is situated, filed in the circuit court of that county an information in the nature of a quo warranto against the appellees, John Ashcraft, G.B. Elliot, and J.B. Webb, mayor and councilmen of said city, to oust them from their offices on the ground that they were usurping the duties of their respective offices without warrant of law.
In the latter part of the year 1922, and the early part of 1923, the city of Greenwood attempted to incorporate within its limits the territory lying north of the Yazoo river known as North Greenwood. The ground of the petition was that these proceedings were void; that the territory known as North Greenwood, therefore never became a part of the city of Greenwood. When the petition was filed, one of the appellees, John Ashcraft, was the mayor of the city, and was a resident citizen of the territory attempted to be incorporated.
The petition set out fully the facts relied on as constituting the void proceedings by which North Greenwood was sought to be annexed, and charged that the appellees, as mayor and councilmen, were unlawfully exercising authority and jurisdiction over the said territory. The prayer of the petition was that the mayor and councilmen be "debarred as councilmen of the city of Greenwood from exercising jurisdiction over said territory described as aforesaid, and that said ordinance of annexation, dated December 5, 1922, be declared null and void, and that all the territory described in said ordinance *843 of annexation be declared outside of and no part of the city of Greenwood.
In addition to the general issue, the appellees filed four special pleas to which the appellant demurred on the ground of insufficiency in law, which demurrer was overruled, and the appellant declining to plead further, final judgment was entered in favor of appellees, from which judgment this appeal is prosecuted.
The case being here on pleas and demurrer thereto overruled, the facts set out in the pleas are to be treated as true.
The first special plea follows: "Now comes John Ashcraft, J.B. Webb, and G.P. Elliott, the defendants in the above-styled cause, by their attorneys, and for a plea in this behalf, says that the plaintiff ought not to have and maintain the aforesaid information in the nature of a quo warranto against them, because the defendant says that the city of Greenwood, Mississippi, was on the first day of January, 1922, a municipality duly organized and existing under the laws of the State of Mississippi, and operating and functioning as such municipality and for a long time theretofore and ever since said date has been, and now is duly operating and functioning as such municipality. That on the 7th day of October, 1922, the then Governor of the State of Mississippi, Lee M. Russell, issued his proclamation abolishing the alleged Town of North Greenwood, Le Flore County, Mississippi, so that if the said town ever existed the same was prior to the time of the extension of the corporate limits of the said city of Greenwood, completely destroyed and annihilated as such municipality. A copy of said proclamation is hereto attached and marked Exhibit `A' to this plea, as a part hereof. That on the 5th day of December, 1922, the council of the said city of Greenwood passed an ordinance extending its limits including the territory theretofore supposed to embrace the limits of the said alleged town of North Greenwood; and that on the 16th day of January, 1929, the said council of the said city of Greenwood *844 passed an ordinance approving the boundaries as described in the said ordinance of December 5, 1922, and adjudicating the publication of the said ordinance as required by law, as shown by Exhibits `D' and `E' to relator's declaration and information. That the said territory so alleged to have been called North Greenwood was at the time of the extension of said city limits, and before, adjacent to territory embraced by the corporate limits of the said City of Greenwood, and being at the time of said extension separated only by the Yazoo River, the corporate limits of the said City of Greenwood extending to the south banks of said River and following and embracing said banks for at least a half a mile, and the said North Greenwood Territory extending to and embracing the north banks of said River and following said banks for at least one quarter of a mile, the boundaries of said territory being shown by the exhibits to relator's declaration and information herein and part of the territory annexed touches and abuts the original territory of the city of Greenwood, and the said territories are also connected by a large iron bridge, and its approach affording free and convenient access and passage between said two territories for pedestrians, automobiles, trucks, tractors, and all manner of traffic, except railroad trains, the said bridge being one of the largest, most magnificent and commodious in the State of Mississippi; that upon and immediately after the issuance of the proclamation signed by said Governor Lee Russell, shown as an exhibit to the said information filed by relator, and as Exhibit `A' to the first special plea to the original complaint herein and hereby made a part hereof, the said alleged municipality of North Greenwood ceased to attempt even to operate as a town or municipality. There were no meetings of any persons styling themselves as mayor, aldermen, council, or by any other nomenclature applicable to municipal officials, that no taxes were levied by any other authorities styling themselves as officials of `Town of North Greenwood,' and *845 no persons whatever purported to act as such officials, and no improvements were made in said alleged North Greenwood territory by any municipality or alleged municipality styling itself as North Greenwood, or by persons styling themselves as officials of North Greenwood, and that the property owners of said North Greenwood territory after the extension of the corporate limits of the city of Greenwood paid taxes to the said City of Greenwood, voted in its elections and generally recognized the said alleged North Greenwood territory as a part of the said City of Greenwood, and which said territory alleged as North Greenwood was at the time of said extension, and is now, very populous; that the officials of said City of Greenwood have, ever since said extension of said corporate limits of said City of Greenwood, treated and recognized the said North Greenwood territory as a part of the said City of Greenwood; that the streets of said added territory have been since said extension worked, drained, graveled and lighted by said city of Greenwood, and said added territory furnished by said City with police protection and public schools, and into said territory have extended water mains, erected fire plugs and furnished most of the inhabitants of said added territory with abundant water supply and fire protection, except as to water supply and fire protection in that part of said added territory known and called Boulevard Addition to North Greenwood, which could not be furnished by reason of reservations reserved by the original owners of said addition, which rights are now being sought by the said City of Greenwood in the Courts; that all of the territory described in said declaration or information has been ever since the said extension of the said corporate limits and is now functioning and operating under the control of and as a part of said City of Greenwood, in which control, functioning and operating the State of Mississippi has for more than six years acquiesced and during which said six years and more, large expenditures of money have been made *846 by the said City of Greenwood in and about the improvement of said territory, and all of its dealings have been upon the faith and confidence that the said added territory was a part of said City, and the defendant has served as Mayor of said City ever since January 3, 1927, and that on account of the said long acquiescence and failure of more than six years to question the said extension, and because of laches, the State is now estopped to question the validity of said extension through this proceedings against the Mayor and Commissioners duly elected by the citizens of said city, the election of the said Ashcraft being shown by a certified copy of the returns of the election commissioners of the said city of Greenwood electing this respondent, Ashcraft, to the office of Mayor of said City, filed as Exhibit `B' to the first special plea to the original complaint herein and made a part hereof. And by this warrant the said John Ashcraft has held and executed during all the time in said information mentioned, and still holds and executes the said office of Mayor of the City of Greenwood, and said Webb and Elliot exercise rights over said added territory as they well might and still may; and that said Ashcraft does not now usurp the said office as by the said information he is above supposed. All of which the said John Ashcraft and said Webb and Elliot are ready to verify."
The second plea set out substantially the same facts as the first, and, in addition, that if the town of North Greenwood was not abolished in 1922, it was automatically abolished by chapter 268, Laws of 1926. The third plea set up that no good would be accomplished by upsetting the present status of the city of Greenwood, but that only evil would result; that courts were organized for the purpose of doing justice and not injustice; that the disruption of the unity of the city of Greenwood would bring about incalculable hardships and confusion among the property owners of the entire territory constituting the city. The fourth special plea set up that *847 the organization of the city of Greenwood, as it now exists, and the extension of its municipal boundaries, were, in all respects, legal.
Among the exhibits to the petition is a certified copy of a petition from the office of the city clerk of Greenwood dated September 20, 1922, addressed to Governor Russell, asking that the town of North Greenwood be abolished on the ground that its municipal authorities had ceased to function for more than six consecutive months preceding the date of the petition, and reciting that it was signed by a majority of the qualified electors of the town of North Greenwood, and prayed that said town be abolished under the authority of section 3310, Code of 1906. Another exhibit to the petition is a certified copy of the Governor's proclamation abolishing the town of North Greenwood, dated October 7, 1922.
Under the law, a municipality cannot extend its boundaries so as to include another municipality. Gandsi v. Seminary,
The appellant contends that under those decisions the proceedings to annex North Greenwood to the city of Greenwood were void, because North Greenwood was, at the time, an existing municipality; while the appellees contend that North Greenwood was not, at the time of its annexation, a separate municipality from the city of Greenwood, because it has been previously abolished as such.
We are of the opinion that the proceedings by which it was sought to abolish the municipality of North Greenwood were void; that it was, at the time of its attempted annexation to the city of Greenwood, a separate municipality; and that therefore the annexation proceedings were also void. We do not set out the facts embodied in the pleadings out of which these questions arise, and do not discuss the questions, for two reasons: First, because, in their nature, they are questions that will probably *848 not arise in the future; and, second, the conclusion we have reached results in the affirmance of the judgment appealed from on another ground, which ground we shall now undertake to develop and discuss.
As set out in the special pleas, for nearly seven years prior to the beginning of this action, the city of Greenwood, as now constituted, has continued to function. Since the ordinance of annexation of North Greenwood to the city of Greenwood, on December 5, 1922, North Greenwood has ceased to function as a separate municipality. It has had no municipal officers of its own, and has taken no action whatever, of any kind or character, as a separate municipality. Its inhabitants are inhabitants of the enlarged city of Greenwood. Its qualified electors vote in the elections of the city of Greenwood. All municipal taxes against property in North Greenwood are assessed and collected by the municipal authorities of the city of Greenwood. The streets of North Greenwood have been lighted and graveled by the city of Greenwood, and the city of Greenwood furnishes police and fire protection to North Greenwood, and public schools. The city of Greenwood has extended its water mains into North Greenwood, erected fire plugs, and furnished the inhabitants of North Greenwood with water, fire protection, etc., except as to water and fire protection in that part of said territory known as Boulevard addition, which could not be furnished by reason of certain water rights of the original owners of that addition. The pleas also set out that the state had acquiesced in this condition of affairs for nearly seven years before bringing this action.
The appellees' position is that, although the city of Greenwood, as now constituted, be only a de facto municipal corporation, on account of the facts and conditions set out in the special pleas, the state is barred from now questioning its legality.
Section 4017, Code of 1906, section 3216, Hemingway's 1927 Code, provides that the remedy by information *849 in the nature of quo warranto "shall lie, in the name of the state against any person or corporation offending in the following cases." The statute then sets out eleven different cases in which the remedy shall lie. The first, fourth, and fifth of these are in this language: (1) "Whenever any person unlawfully holds or exercises the functions of any public office, civil or military, or franchise, or any office in any corporation, city, town, or village, and to try the right to any such office." (4) "Whenever any corporation shall be guilty of a misuser or abuse of its powers, or ceases to discharge the duty for which it was created." And (5) "whenever any corporation wilfully exercises powers not conferred by law."
In the absence of any statutory period of limitation, it is generally held by the courts of this country that an action in the nature of quo warranto on behalf of the public may be commenced at any time; that lapse of time constitutes no bar to the proceeding; that the maxim, "Nullum tempus occurrit regi," applies in such cases. However, the courts of several of the states of the Union, although recognizing and giving force to that maxim, hold that conditions may arise in the administration of the affairs of a corporation, whether such corporation be public or private, by reason of which the state, on account of its laches in questioning the legality of the corporation, will be barred from so doing. One of the leading cases bearing on this question is that of State v. Des Moines, 96 Iowa, 521, 65 N.W. 818, 821, 31 L.R.A. 186, 59 Am. St. Rep. 381. The city of Des Moines incorporated within its limits some adjacent territory. The act of incorporation was void for reasons unnecessary to state. For four years thereafter, without any question by the state, the enlarged city exercised throughout its entire territory the rights and functions of city government, including the levying and collecting of taxes, establishing, opening, vacating, changing, and improving streets, and making contracts, and creating and paying *850 debts. Four years after the annexation of the territory, the state proceeded, by petition in the nature of quo warranto, to set aside and vacate the annexation proceedings. The case is so well reasoned and supported by authorities referred to in the opinion, that we do not see how we could do better than quote that part of the opinion bearing directly on the question at bar. It follows:
"It is hardly possible to contemplate the situation to result from a judgment dissolving the present city organization, and leaving the territory formerly embraced within corporate lines as it would be left. Of all the cases to which we are cited, involving the validity of municipal organizations, where the consequences to result from a judgment of avoidance are considered, not one presents a case of such uncertainty, nor where there are the same grounds for serious apprehension, because of difficulties in adjusting rights in this case. There are many cases where the doctrine of laches has been applied to sustain a municipal government where the organization, as attempted, was illegal. Much importance is attached by appellant to the fact that in this case the act serving as a basis for the annexation is absolutely void, and a distinction is drawn between proceedings where they are irregular, merely, and where they are void. The case of State v. Leatherman,
To the same effect are the following cases: State v. Bailey,
These cases do not apply the doctrine of laches and estoppel to the state as those terms are ordinarily defined in the decisions of the courts. They are based, rather, on the principle of the public welfare. Laches, however, is one of the elements that enters into the question. The very large question is whether the state, in its sovereign capacity, has the right, in a proceeding of this *855 character, to destroy instead of promote the public welfare. Here, we have a de facto municipal corporation exercising all the functions, and no more, so far as the record shows, of a de jure municipal corporation. The state stands alone upon the position that the city of Greenwood is guilty of breaching a bare legal right of the public. The governing principles in this case apply not only to public corporations — such political subdivisions of the state as counties and municipalities — but apply, as well, to private corporations chartered under the laws of the state. For illustration, take one of the counties of the state. It has been illegally organized as a county, because, in its organization, the law was not pursued. Nevertheless, it is a de facto county. It has functioned for years, issued bonds, built a courthouse, and has all the district and county officers which the law provides for counties legally organized. There have been chartered and organized in the county municipalities which have issued bonds for their various purposes, as provided by law. The board of supervisors has organized and put into operation drainage and road districts, etc., in accordance with the drainage and road laws, and has issued bonds for such taxing districts. Besides the election of its regular county and district officers, it has elected members of the State Legislature and has participated in all other state elections. There has been no abuse by the county of the powers conferred on counties by the law. The only complaint the state has for dissolving the county is the naked fact that the law was not complied with in the organization of the county. The attorney-general, in the name of the state, files a petition in the nature of a quo warranto against all the officers of the county requiring them to show by what warrant they hold their offices, or against the county itself to dissolve it and place it back into its original state. The sole ground for so doing is that, under the law, the organization of the county was void. There is no pretense that the public welfare would be promoted by the proceeding, *856 but, on the contrary, it is shown that incalculable harm will result to the public.
Are the courts powerless to prevent such a result? We say not. The rule of reason and justice will be applied here as was applied by this court in construing our anti-trust statute, which was afterwards, by the legislature, embodied in an amendment to the statute.
Take another illustration: There is a railroad corporation chartered under the laws of the state. It has been in operation for years, has its railroad lines in the state, is engaged in carrying passengers and freight, and has issued millions of dollars of bonds in its building and betterment. These bonds are held all over the country by purchasers, in good faith, for value. It turns out that, for some reason, the charter of the corporation is void. Nevertheless it is shown that the corporation is guilty of no abuse of the regular corporate powers generally conferred on railroad companies. It is true it is not a legal corporation, but it is a de facto corporation serving the public as if it were a de jure corporation. The only claim the state has for proceeding to vacate its charter and dissolve the corporation is the bare fact that its attempt to become a corporation is void because the law, in some respects, was not pursued. In such case, would the courts be powerless to render a just judgment by denying the state a judgment dissolving the corporation? The purpose of our statute conferring upon the attorney-general and the district attorneys of this state the power to bring quo warranto is to vindicate, not destroy, the rights of the public.
This is a new question in this state. The only decisions of our court coming anywise near to it are City of Jackson v. Merchants' Bank,
The Ætna Insurance Company case was a suit by the state against the insurance company to recover penalties for violation of the anti-trust statute. There was much conflict in the opinions of the judges as to whether the state could be estopped by laches. The result of the judgment of the court, however, was to estop the state from recovering penalties for more than two years before the action was brought.
Appellant refers to the case of Fire Hose Co. v. Mayor and Board of Aldermen, of City of Vicksburg,
In the Krebs case, there was no effort whatever on the part of the city of Pascagoula to exercise jurisdiction over the annexed territory. The inhabitants of the annexed territory sent their children to the county schools; the county, not the city of Pascagoula, maintained their roads and bridges, and furnished such police protection as they had. The court said in the opinion: "In fact, it did not seem that anybody in authority knew that this merger of Eastside into the municipality had been accomplished."
How different from the present case, where everybody knew that the merger had taken place, and acquiesced in it for more than six years prior to the bringing of this suit.
There is another reason to be added to those already set out (and a potent one it seems to us), why the state ought to be barred from maintaining this action, and that is that by chapter 268, Laws of 1926, the town of North Greenwood was automatically abolished. That act, in substance, provides that all municipalities in the state containing less than one thousand inhabitants as determined by the federal census of 1920, which have not functioned for a period of two years, shall be abolished and thereafter cease to exist. The record in this case shows that, by the census of 1920, North Greenwood contained less than one thousand inhabitants, and the record also shows that it has not functioned as a separate municipality since its territory was annexed to the city of Greenwood in the latter part of 1922. This statute embodies the public policy of this state in reference to municipalities of the character of North Greenwood. If the prayer of this petition in this case is granted, the city of Greenwood can now legally do what it failed to do in 1922, namely, it can incorporate within its boundaries the territory formerly constituting North Greenwood. It appears, therefore, that the whole object of this action is vain and useless.
Affirmed. *859
Dissenting Opinion
The judges who dissented from the original opinion herein could well stand upon the views and authorities cited in the dissenting opinion; but, since the opinion on the suggestion of error therein, the affirming judges have squarely placed their opinion upon the proposition that the court has a discretion in quo warranto, which it may exercise in refusing aid to the state, where, in the opinion of the court, a suit would injure rather than help the general welfare.
I think this is a very dangerous power for the court to assume, and one that has not been conferred upon it by law.
The state, in partiting the powers of government, has designated to particular officers certain powers, and in such case the officer to whom the power is designated represents the state, and is responsible for the exercise of his discretion and judgment. By section 3217, Hemingway's 1927 Code, section 4018, Code of 1906, power to institute proceedings in quo warranto is conferred upon the attorney-general or district attorney. This section is a specific designation as to who shall institute such proceedings. It provides as follows:
"The proceedings in such cases shall be by information, in the name of the state, by the attorney-general or a district attorney, on his own motion or on relation of another," etc.
The attorney-general and district attorney are given the power, by the legislature, to institute this proceeding, *878 upon their own motions, and they are not required to obtain leave of the court, or leave of any other person. Such attorney-general, or district attorney, is the officer to whom the state has confided the power and discretion with reference to whether a suit shall be brought. The court is nowhere given this power, and did not have it at common law. The court's power is derived from the Constitution, statutes, and common law, and it has no other powers than those conferred.
In my opinion, it is peculiarly appropriate that this discretion is conferred in this manner. The expediency and wisdom of bringing a suit, or refraining from so doing, is hedged about and commingled with economic and political considerations. The court should confine its activities to decisions upon the merits of suits when they have been brought, and to administering justice according to law, entirely separate from the expediency or righteousness of the litigation. At the common law, the attorney-general brought quo warranto proceedings upon his own motion and of right. He was supposed to represent the King in so doing, and not the judicial or legislative branches of the government. In addition to the authorities heretofore cited upon this proposition, see 17 Encyc. Pl. and Pr., p. 444, where it is said: "At common law the attorney-general had the right ex officio to sue out a writ of quo warranto or to bring an information in the nature of a quo warranto on behalf of the sovereign without leave of court, it being a writ of right for the sovereign" — citing Attorney-General v. Sullivan,
The "some cases" referred to are cases where, under the peculiar jurisprudence and common law of the state, the English statutes existing prior to the Revolution were adopted. As above stated, these statutes have never been adopted in Mississippi. The discretion has been confided to the attorney-general or the district attorney in this state, and I am satisfied that these officers are safe repositories of that power, and that we are not called upon to supervise them in the exercise of their discretion. I think it would result injuriously to the public interest to do so. I know of no greater danger to the court than to assume powers not conferred upon it by law. It is the one branch of the government whose decisions upon constitutional questions and legal constructions are not subject to review by any other department. Its decisions can only be corrected by statute or constitutional enactment.
SMITH, C.J., and McGOWEN, J., concur.
Dissenting Opinion
I agree with the majority opinion that, under the cases of Gandsi v. Seminary,
I do not agree, however, that the judgment should be affirmed on any theory of delay and changed conditions resulting from the unauthorized attempt to annex North Greenwood. Until the act of the legislature in 1926, the municipality of North Greenwood continued to be a municipal corporation, and there has been no act on the part of the city of Greenwood since the passage of this legislative act to annex the territory constituting the municipality of North Greenwood.
Section 104 of the Constitution of 1890, provides that: "Statutes of limitation in civil causes shall not run against the state, or any subdivision or municipal corporation thereof."
The purpose of this section of the Constitution was to take away the power from any agency of the government, to bar the state from bringing suit because of time. At the common law, the state was a favored suitor and was not barred by the lapse of time. See Parmilee v. McNutt, 1 Smedes M. 179; Hill v. Josselyn, 13 Smedes M. 597; City of Lexington v. Hoskins,
In 21 C.J., p. 217, section 216, it is said that: "While the contrary has been held, yet, by the weight of authority, the defense of laches is not available against the government, state or national, in a suit by it to enforce a public right or to protect a public interest, or, as the rule is sometimes expressed, the laches of its officers or agents will not be imputed to the government. This rule applies, however, only to suits brought by the government in its sovereign capacity to enforce or protect a public or governmental right. If it sues for the use and benefit of an individual, or for the enforcement or the protection of a private and proprietary right rather than a public or governmental right, laches is pleadable against it the same as against an individual. And the privilege of sovereignty in respect of laches is not available to creditors of the government who sue for their own benefit to enforce a claim due it. In some jurisdictions the rule exempting the government from the operation of the doctrine of laches applies in favor of municipal corporations and other governmental agencies *862 when the right sought to be enforced by them is public or governmental in character, but not otherwise. In other jurisdictions, laches is pleadable against such corporations and agencies the same as against an individual."
It will be seen from these quotations, and the authorities cited in the notes to sustain them, that there is a distinction in the application of the doctrine of laches and estoppel between suits by a government in its sovereign capacity for the vindication of public rights, and suits by it for the enforcement or vindication of private rights. This distinction must be kept in mind as a key by which the problem is to be determined. In our own state, we have a number of cases which, in my judgment, are directly in point, so far as the principle is concerned, and the doctrine of laches and estoppel is not applied to either the state or municipalities in any case where an officer has acted ultra vires, or without authority of law. In the case before us, the officers were clearly acting without authority of law, ultra vires, and, consequently, no doctrine of laches or estoppel can be applied.
In the case of Edwards Hotel, etc., Co. v. City of Jackson,
In the seventh syllabus it is stated that, "All persons dealing with a city must take note of its charter and the powers of its officers."
In the fifth syllabus it is stated that a stipulation surrendering the right of the city to pave streets at the cost of abutting owners cannot be enforced because beyond the power of the city authorities.
In the third syllabus it was held that a city could not contract away its charter powers to require the paving of streets and assess a part of the costs on abutting property owners.
On page 575 of
In the case of Eastman Oil Mills v. State,
In Bank of Commerce v. City of Gulfport,
In the case of Cleveland State Bank v. Cotton Exchange Bank,
In Witherspoon v. City of Meridian,
In Waterworks Co. v. Meridian,
In Woodruff v. Okolona,
In the case of Board of Supervisors of Jefferson County v. Arrighi,
See also Hazlehurst v. Mayes,
An interesting case upon the subject, and one which might be relied upon as a complete answer to all that is said in the majority opinion, is the case of State ex rel. Young v. Village of Kent,
This case refers to numerous authorities, and elaborately discusses them in a very interesting manner. I will only quote a few passages from it, the opinion being too full to embody in this opinion. At page 260 of 96 Minn., 104 N.W. 948, 950, 6 Ann. Cas. at page 907, it is said: *867
"The ancient writ thus became obsolete in England, and the proceeding by information in the nature of quo warranto came into use. Informations in the nature of quo warranto were either (1) such as were filed by the Attorney-General ex officio on behalf of the crown, or (2) those exhibited by the Master of the Crown Office on the relation of some private individual. The abuse of the right which the Master of the Crown Office exercised of filing such informations on his own discretion at the instance of private persons who were not named as relators led to the enactment of St. 4 5, Wm. Mary, c. 18, which made it necessary for a person who desired to file such an information to obtain permission to do so from the court and enter into a recognizance for the sum of £ 20. Rex v. Hertford, Salk, 376. This statute was restrictive in its operation, and the purpose was to restrict the powers of the Master of the Crown Office to vex and oppress the King's subjects. It will be noted that the act in no way restrained or restricted the power of the attorney-general when acting ex officio on behalf of the general public. It related solely to proceedings sought to be instituted by the Master of the Crown Office at the instigation of private individuals. This is also true of the famous St. 9 Anne, c. 20, the substance of which has been embodied in so many American statutes relating to the subject of quo warranto. As we have seen, the former act was restrictive, but the statute of Anne was enacted for `rendering the proceedings upon writs of mandamus and informations in the nature of quo warranto more speedy and effectual and for the more easy trying and determining the rights of officers in franchises and boroughs.'
"The ancient common-law writ of quo-warranto was a writ of right for the King, and issued as of course at the instance of the attorney-general. 4 Blackstone, p. 309; Abbot of Strata Mercella, 5 Coke, 40; Rex v. Phillips, 4 Burr. 2090; Rex v. Staverton, Yelverton, 190, 1 Bulst. 54; Whelchel v. State,
"Where the common-law procedure prevails either by statutory enactment or adoption by the courts, the authorities in this country uniformly sustain the right of the attorney-general to the writ, when the information is filed by him in his official character as the representative of the state. In the recent case of Meehan v. Bachelder,
"In Lamoreaux v. Ellis,
In the case State of Minnesota ex rel. Phobstfield v. Sharp et al.,
In this opinion, after stating the statutory provisions, the court further said: "At the start it is objected by the respondents that the relator, Probstfield, has actively acquiesced in the exercise of the franchise spoken of, and the respondents' assumption of title to the offices in question, and in their discharge of the alleged powers and duties of the same, and that he is, therefore, estopped to institute or conduct this proceeding. The answer to this is that it is the attorney-general who has instituted and who is conducting the proceeding, as the law officer of the state — the representative, not of the relator, but of the government. It is for him to determine whether the public good requires him to proceed in the matter. If he deems it best to proceed, notwithstanding any conduct of the party at whose instance he moves, if there is any case in which his determination would be overruled, it must certainly be a very extraordinary one, and not such a case as this."
In High's Extraordinary Legal Remedies (2 Ed.), p. 499, after discussing various questions as to quo warranto, it is stated: "But while the courts are disposed to overlook trifling irregularities in the election of officers who have held long and undisturbed possession of *871 their franchise, length of time will not prevail as against the sovereign, where the irregularities in the election go to the very question of right, and in such cases, the maxim nullum tempus occurrit regi applies with especial force. So when the proceeding is instituted by the attorney-general in behalf of the state, the fact that the relator has acquiesced in the exercise by respondents of the franchise in question will not operate as an estoppel."
See also State v. Turnpike Co.,
Under our statute the quo warranto referred to in the majority opinion does not require the attorney-general to procure leave of the court in order to file suit. The court has nothing to do with his discretion as to whether he shall file suit, or whether a writ should issue. He exercises the discretion conferred upon him as the representative of the state, and the court has no right or power to refuse to hear a suit brought by him. His discretion is now reviewable by the court under the statutes of this state.
In Woodberry v. McClurg,
However, if we had such power, this case is not one where it should be exercised. The present suit was not brought until slightly more than six years, but that is not an unreasonable period of time.
There are other cases in which we have been called upon to decide this question, being suits brought by private persons in which it was sought to test this question, but which we found unnecessary to do to dispose of them in private litigation. One of these was Greenwood v. Provine,
The majority opinion cites the case of City of Jackson v. Merchants' Bank Trust Co.,
The majority opinion also cites the case of Ætna Ins. Co. v. Robertson,
If there was any case where the doctrine of laches should have been applied, it was in a case such as there decided, where suits were brought for penalties accruing daily in large amounts, and running through a long period of years, and which, if enforced, meant, practically, confiscation of the capital involved, and also where such a peculiar situation existed — the withdrawal from the state by many insurance companies, large business built up and made profitable by the business sagacity of the owner of the business being thus destroyed, and the general public being greatly restricted in, and sometimes entirely prevented from, obtaining insurance upon property.
I cannot yield my consent to attaching to property rights an importance superior to governmental rights, and especially as applied to penal statutes. That was a case in the chancery court which proceeds according to equitable rules and principles, and laches is a doctrine of a court of equity, and has no application to a court of law. It is true that in some states it has been held that courts of law would apply the doctrine of laches, but in others only the chancery, while in other states the decisions are due to peculiar statutes — statutes difficult of being understood by judges and lawyers of other jurisdictions who are not entirely familiar with the statutory system of the state. Originally, equity had jurisdiction of *874 the power to award relief upon conscientious considerations, and laches grew out of conscientious considerations by which equity courts determined the remedy where there had been laches, although courts of law would award remedies in any case.
The case before us is in a court of law as distinguished from equity, and the rule, for that reason, should not be applied.
The majority opinion relies principally upon the case of State v. Des Moines,
I always feel safe when I am in harmony with the decisions of the supreme court of the United States. That court has held, in many cases, with the views expressed in this opinion. In U.S. v. N.C. St. L.R.R. Co.,
I therefore think the case at bar should be reversed and judgment of the court rendered for the state. But it requires a majority of the judges to reverse a case, and, as the court is equally divided, we all recognize the rule that the judgment must be affirmed where there is an equally divided court.
SMITH, C.J., and McGOWEN, J., concur in this opinion.
Addendum
It is now earnestly insisted, however, on the suggestion of error that the discretion in this respect is vested by the statute exclusively in the attorney-general or in the district attorney, because under the statute no leave of court is required, as was the case under the ancient practice. There is authority for the view thus urged, but we are of opinion that the better rule is that laid down by the authorities which hold to the contrary and to the effect that "at the hearing or in applying a remedy in quo warranto, the court is possessed of a degree of discretionary power which enables it to take cognizance of laches or delay in instituting proceedings, of the same character as it exercises in granting or refusing the right to file an information. This discretion is employed particularly in cases wherein the information is filed without leave of the court. . . . It has sometimes been said that the courts of this country have come to exercise in the final disposition of quo warranto cases that discretion which was originally only exercised in allowing the information to be filed; and they have come to exercise some discretion where the proceeding is instituted by the state on the information of a state officer." 22 R.C.L. 704, and authorities cited in the notes, and see the notes pages 488-491 in Ann. Cas. 1914C. As said in State v. Mansfield, 99 Mo. App. 146, 72 S.W. 471, 473: "These quo warranto proceedings are now commonly instituted of course, and without leave; and, if there is to be any discretion used about the relief at all, it must be used in delivering judgment. So, too, as the proceeding may be instituted at the relation of any prosecuting attorney, the sanctity which originally attached to it when the information was exhibited by a great officer like the attorney-general of England, or the attorney-general of the United States or of a state, who is supposed to represent in a peculiar degree the prerogative and sovereignty *877 of the state, no longer exists; . . . and at no stage, considering its present characteristics, and the modern practice tolerating the filing of informations as a matter of course, can the discretion be so wisely or justly exercised as after the cause has been heard, and the court is fully advised as to the facts."
Suggestion of error overruled.