37 Neb. 371 | Neb. | 1893
This is an information in the nature of quo warranto, alleging that the respondents, conspiring to usurp the franchise and power to license the traffic in intoxicating liquors, and enjoy its revenue in a place in Butler county known as Abie, procured upon a piece of paper the signatures of certain persons, and thereafter made a writing in the form of a petition, praying for the incorporation, as a village, of said place of Abie, and fraudulently attached said signatures to said writing, making the same' falsely to appear as a petition in due form by a majority of the taxable inhabitants of said Abie for incorporation as a village; that they presented that paper to the board of supervisors of Butler county, and that certain of the respondents ap
It is clear under these facts that the territory designated as Abie was not entitled to incorporation as a village; that no proper petition was filed before the board of supervisors, and that, on the contrary, a grave fraud was practiced upon the board to procure the order of incorporation, whereby the board was induced to act upon a forged petition which conferred no jurisdiction upon the board. Under the common law quo warranto would not lie in such a case. (Rex v. Saunders, 3 East [Eng.], 119.) And there are decisions in the United States to the same effect. Section 704 of the Code of Civil Procedure provides, however, that an information may be filed against any person unlawfully holding or exercising any public office or franchise, or when any ¡persons act as a corporation without being authorized by law. Under very similar statutes it has been held in ■several states, and we think rightly, that in such proceedings against the persons unlawfully exercising the powers ■of an office the legal existence of that office may be determined. (People v. Carpenter, 24 N. Y., 86; State v. Parker, 25 Minn., 215; State v. Gladwin, 41 Mich., 647; State v. Coffee, 59 Mo., 59.) Indeed it would seem that to
Writ allowed»