112 N.W. 141 | N.D. | 1907
Lead Opinion
This is an application for the issuance by the court of an original writ in the nature of quo warranto.
The application is made in the name of the state by one John Frish, a private person, as relator, and the object sought by such writ is to compel the defendants, who are acting as certain county officers ■of what is known as McKenzie county, to desist from exercising jurisdiction and authority as such county officials over the territory embraced within the limits of such county; relator’s contention being that no such county legally exists, for the reason that the law under which the same was attempted to be organized, being chapter 73, p. 155, of the Laws of 1905, is unconstitutional and void, as being in violation of section 167 of the Constitution, which, it is claimed, prohibits special legislation upon the subject of the organization of counties. Upon the presentation and filing of the application, an order was made and served upon defendants requiring them to show cause before this court why such writ should not be issued as prayed for. Pursuant to such order to show cause, the defendants, through their counsel, have appeared and resist the issuance of such writ, both upon the ground that the relator has no right to institute the proceedings and also upon the merits. The facts as stipulated are briefly as follows: The defendants, Nohle, Bangs and Shaw, were in the month of April, 1906, appointed county commissioners in and for McKenzie county by the governor, and the defendants, Dimmick and Millhouse, were at said time appointed by the governor to the offices of treasurer and auditor, respectively, and that all such persons thereupon assumed the duties of their respective offices and acted as such officers until January 7, 1907; that all of said officers except the defendant Shaw, who was succeeded by one R. B. ■Gore, were, at the general election held in November, 1906, in said county, elected to the respective offices to which they had been theretofore appointed, and they each duly qualified and entered upon the discharge of their duties on January 7, 1907, since which time they •have been the qualified and acting officers aforesaid. Said officers have performed all the duties usually performed by such county officers, and that during the year 1906 taxes were assessed, levied, and collected in said county and the portion thereof belonging to the
We are clearly of the opinion that the application should be denied. By granting the same we would' recognize the right of a mere private relator to invoke the original jurisdiction of this court in a matter in which he shows no greater interest than that of any other resident and property owner of the -county, and this, without first invoking the jurisdiction of the district court, properly having jurisdiction in such cases. It has repeatedly been held by this court that the writ here prayed for is strictly a prerogative writ, and that the same will be issued only in exceptional cases. State v. McLean County, 11 N. D. 356, 92 N. W. 385, and cases cited. In that case this court quoted approvingly from the opinion of the Supreme Court of Utah, in State v. Elliott, 44 Pac. 248, 13 Utah 200, as follows: “It will be noticed that there are five writs of which the Supreme Court has original jurisdiction, and very probably many controversies will arise for which one or the other of these writs will afford a proper remedy. Hence, if we were to assume jurisdiction of every such controversy which might be brought before us, regardless of whether the state had a special interest therein, or whether it presented any special exigency, it -can readily be perceived that most of our time would be consumed in hearing and determining cases which could more speedily and conveniently be heard and determined in an inferior court. This would seriously impair the usefulness of
In applying the doctrine of laches or the rule of estoppel by acquiescence, no fixed time will be taken as controlling, but the facts in each particular case must govern the court’s decision, and where, as in this case, although but about two years have elapsed since the county was organized, grave consequences would inevitably follow to a large number of people as a result of relator’s successful prosecution of the proceedings, and no perceivable benefit to any person
Concurrence Opinion
I concur in that part of the foregoing opinion, holding that the record does not disclose such exceptional facts as to warrant this court in issuing the writ requested on the relation of a private relator, but am of the opinion that a case showing most extraordinary circumstances should be presented to justify a court in holding that a statute conceded to be invalid can in effect be validated by the laches of either the sparse population of a large territory, or state officials who have no constitutional authority to bind either the state or the county in such a matter. The fact that three, or four months after the only election held in a county organized under an unconstitutional statute before a proceeding to determine its status was commenced does not, in my opinion, justify a finding of such laches as are necessary to put life into a statute void ab initio.
In my opinion the facts in this case are entirely inadequate to make the doctrine of State v. McLean County, 11 N. D. 356, 92 N. W. 385, applicable.