125 P. 666 | Utah | 1912
The respondent asked and obtained leave from the district court of Wasatch County, Utah, to file an information and •bring an action in the nature of quo warranto to test the validity of the organization of what is known as the “Wasatch High School District,” in said Wasatch County, and
“For High School that no other notice of election was ever given and no other election except as. stated ever held; that like notices were posted in each of the other school districts in said Wasatch County, and that a pretended election was held in each one at which similar ballots were cast and returns of said elections were made showing that a majority of the qualified electors in each of said school districts had voted in favor of organizing a high school district in said Wasatch County as aforesaid; that said school districts out ■of which said high school district was intended to be formed are not contiguous territory, and that there is no such municipal corporation as “Wasatch High School District;” that ■each of the appellants named, except Orson Ryan, “claims
“Wherefore, plaintiff demands judgment as to the validity of the organization of said Wasatch high school district, and as to tbe right of tbe defendants to exercise tbe office of trustees thereof.”
Tbe appellants assailed tbe right of tbe respondent to' institute and prosecute tbe proceedings, and) also assailed tbe jurisdiction of tbe court to permit him to do so, first, by a motion to rescind tbe leave granted by tbe court to file the information; second, by a general demurrer for want of facts; and, third, by special demurrer in which they assailed tbe power and jurisdiction of tbe court and the legal capacity and right of tbe respondent to prosecute the proceedings for and on behalf of tbe state. The motion and demurrers were overruled, and tbe appellants answered. In view of the conclusions reached by us, it is not deemed necessary to'refer either to the defenses set forth in tbe answer or- tbe findings of the court, except to state that findings were made in favor of the relator, and that judgment was entered in which it was adjudged and decreed “that Wasatch high school district has never been legally” organized, and has never bad “and has
Counsel for appellants contend that for the reasons just stated the court clearly erred in permitting the information to be filed by respondent as a private citizen and taxpayer, and further erred in not sustaining the special and general demurrers to the information, and in entering the judgment and decree as aforesaid.
The proceeding in the nature of quo warranto is regulated by statute in this state. Comp. Laws 1907, section 3609, is as follows:
Section 3610 in substance, provides that a like action may be brought against a corporation (1) when it has offended against any law under which it was created; (2) when it has forfeited its privileges and franchises; (3) when it has committed or omitted an act amounting to a forfeiture of its franchises; (4) “when it has misused a franchise or privilege conferred upon it by law, or exercised a franchise or privilege not so conferred.”
Section 3611 is as follows:
*332 “The Attorney-General, when directed by the Governor, shall commence any such action; and when, upon complaint or otherwise, he has good reason to believe that any case specified in the preceding section can be established by proof, he shall commence an action.”
Section 3612 is as follows:
“Such officer may, upon, his own relation, bring any such action, or he may, on leave of the court, or a judge thereof in vacation, bring the action upon the relation of another person; and if the .action be brought under sub. 1, sec. 3609, he may require security for costs to be given as in other cases.”
Section 3613, among other things, provides that “a person claiming to be entitled to a public office unlawfully held and exercised by another may, by himself or by an attorney and counselor at law, bring an action therefor in the name of the state, as provided in this chapter.” There are additional sections relating to wha.t must be stated in the information, what courts have jurisdiction, the procedure and judgment, but none,, of these matters are material here. By a mere cursory examination of the foregoing provisions of our statute it will be seen .that there is one, and only one, condition under which a private person may bring an action in the nature of quo warranto in the name of the state, and that is when he is “claiming to be entitled to a public office unlawfully held and' exercised by another.” In all other instances mentioned in the foregoing section the Attorney-General must bring the action in the name of the state on his own relation, or, “on leave of court,” mlay bring it “upon the relation of another person.” It is not necessary for us to pause at this time to show the nature and history of an action or proceeding in the nature of quo warranto. It must suffice to say that such a proceeding always was, and still remains, a proceeding for the purpose of determining or vindicating rights of a public, and not those of a private, nature. It is true that there are instances where statutes like ours permit a private person to bring the action in the name of the state to determine his right to a public office. Even in such
“The' right to file an information in the nature of a quo warranto belongs to the state, and the institution of the action is a matter within the discretion of the Attorney-General; and the Attorney-General or other authorized state officer must institute quo warranto proceedings for the redress of injuries to the public right. Statutes abrogating the common law rule have not usually affected it so far as it concerns proceedings essentially public in purpose. A refusal by the Attorney-General to prosecute in such cases does not give a private person the right to 'proceed, nor can the state officer he compelled to bring quo warranto proceedings. Under statutes which authorize the Attorney-General or state’s attorney to petition for a writ of quo warranto at the instance of private persons, if private rights are involved, the consent of the state officer is essential, and the writ cannot otherwise be issued for the redress of the private injury. Provision has been made by statute in several states for quo warranto proceedings to redress private injuries, whereby an applicant may obtain the writ upon showing an interest distinct from that of the public,*334 such as a right in himself to an office. In such cases the consent of the state is not required, and it need not be alleged that the Attorney-General has refused to act.” (Italics ours.)
Tbe foregoing text, with tbe exception of tbe italicized portion, to wbicb we shall refer later, is fully sustained by tbe following well-considered cases: People v. Healy, 230 Ill. 280-296, 82 N. E. 599, 15 L. R. A. (N. S,) 603; Haupt v. Rogers, 170 Mass. 71, 48 N. E. 1080; Porter v. People, 182 Ill. 516, 55 N. E. 349; State v. Taylor, 208 Mo. 442, 106 S. W. 1023, 13 Ann. Gas. 1058; Toncray v. Budge, 14 Idaho, 621, 95 Pac. 32-33; State v. Olson, 107 Minn. 136, 119 N. W. 799, 21 L. R. A. (N. S.) 685; City of Chicago v. People, 80 Ill. 496; Miller v. Town of Palermo, 12 Kan. 14; Stale v. Tracy, 48 Minn. 497, 51 N. W. 613; Steelman v. Vickers, 51 N. J. Law, 180, 17 Atl. 153, 14 Am. St. Rep. 675; Mills v. State, 2 Wash. 566, 27 Pac. 560.
In State v. Olson, supra, tbe Supreme Court of Minnesota so well reflects tbe situation in this state, and so clearly states tbe reasons why private persons without special interests should not be permitted to interfere in matters such as are involved in this proceeding, that we take tbe liberty of adopting tbe following extract from tbe opinion in that case:
“We have, then, squarely presented the question whether, where the Attorney-General refuses to interfere, proceedings in the nature of quo warranto may be instituted in this court by a private citizen having no interest in the subject-matter of the controversy distinct from the general public to determine the legality of the proceedings had for the purpose of creating and organizing municipal subdivisions of the state. The question has been informally presented in other applications, and disposed of without a formal opinion. We deem it advisable at this time definitely to settle the question for guidance in the future. The question whether proceedings may be so instituted to determine the title of a person to a public office has often been before the court in one form or another, and in Barnum, v. Gilman, 27 Minn. 466, 8 N. W. 375, 38 Am. Rep. 304, the right was denied. But in State v. Dahl, 69 Minn. 108, 71 N. W. 910, it was held discretionary with the court whether to grant the writ or not, where the office was filled by appointment, and not by election. But neither of those cases necessarily applies to one involving the legal existence of a municipal or quasi municipal corporation. Corporations of that character can be*335 created only by tbe state, acting through the legislative department, and are brought into existence for public, and not private, purposes. They derive their franchise from the state, and are created for the better regulation and government of local affairs, and for the enforcement of laws enacted for the general welfare. Conceding for present purposes the right of a private citizen in special cases to institute proceedings to test the right of another to hold an office in such a corporation, and for which the applicant for the writ is not a claimant, when he goes further with his application, and seeks to attack the legal existence of the corporation and its right to exercise its public functions, a right derived Wholly from the state, he encroaches upon a domain in which his interests are not distinct from those of the other citizens, ■ and he should not be heard. In such a case the right to institute an inquiry into the legality of the acts of the corporation should be confined to the law officer of the state, the Attorney-General.”
Numerous eases are there cited.
In Miller v. Town of Palermo, 12 Kan. supra tbe rule is stated in the headinote (which correctly reflects the decision written by Mr. Justice Brewer) as follows:
“Private individuals who have no interest other than as citizens, residents, and taxpayers of a municipal corporation cannot maintain an action of quo warranto against such corporation.”
In that case the purpose of the proceeding was to “dissolve” the corporation because pot legally organized and to oust the “pretended officers” of said corporation. Without quoting from the oases, we say, without hesitation, that all those that we have cited, as well as many others, will be found to fully sustain what is said in the foregoing quotation.
So far as is disclosed from the information filed by respondent, all his interest in this controversy consists in being a citizen of this state and a resident and taxpayer within Charleston school district, Wasatch County. It is not such an interest as will authorize him, under our statute, to bring an .action of quo loarranto to test the validity of a public corporation, although such corporation is but a school district with but limited and defined powers.
The respondent, therefore, not only had a remedy by instituting an election contest, but in case he has a special interest he may also request the Attorney-General to bring an action of quo warranto upon his relation, and, if the Attorney-General refuses to do so-, respondent may then invoke the aid of the court, and, if he can show that he has a special interest to protect, the court may order the Attorney-General to bring the action upon his relation, and the court will then determine his rights, and. give him such relief as he may be entitled to under the law. Our statute, however, does not permit, nor
Counsel for respondent has referred us to the case of State v. Small, decided in 1908 by the St. Louis Court of Appeals and reported in 131 Mo. App. 470, 109 S. W. 1079. Counsel seems to rely upon that case. A mere cursory examination, however, shows that that case was prosecuted under the provisions of the Revised Statutes of Missouri, section 4457. The general rule, and the one we have attempted to follow, is laid down by the Supreme Court of Missouri in the case of State v. Taylor, 208 Mo. 442, 106 S. W. 1023, 13 Ann. Cas. 105-8, to which we have already referred. The case of State v. Small, therefore, has no application here. Counsel also cites the oases of Roeser v. Gartland, 75 Mich, 143, 42 N. W. 687, and State v. Alexander, 129 Iowa, 538, 105 N. W. 1021. The case from Michigan was in fact prosecuted by the state’s attorney, and hence the state was represented by its counsel, and the case from Iowa, like the Missouri case, was prosecuted under a statute expressly -authorizing the prosecution. (Code of Iowa, Annotated, 1897, section 4316.) These are the only cases counsel has referred us to, .none of which is in point. We have not been able to find a case where, in the absence of an express statute, any court- has permitted a private person to bring and maintain a case under facts and circumstances like those disclosed in the information filed in this case.
For the reasons stated, we are clearly of the opinion that the court erred in overruling the demurrers, and in proceeding to hear and determine the case. The judgment is therefore reversed, and the cause remanded to the district court of Wasatch County, with directions to sustain the demurrers, and, in view that respondent cannot maintain this proceeding for the reasons herein stated, said court is directed to dismiss the proceedings at the cost of respondent. Ap>-pellants to recover costs on this appeal.