3 Wyo. 731 | Wyo. | 1892
This is an action in the nature of quo warranto. The petition charges that defendants use, without authority of law, the liberties, privileges, offices, and franchises of being the mayor and councilmen of the pretended town of Lander, and of being a body corporate and politic in law, fact, and name, by the name of the “Town Council of the Town of Lander. ” The answer admits the use by defendants of these franchises and offices, but denies that such use is without authority of law. The answer is in the nature of a plea in confession and avoidance, and sets upfactsin justification. To this answer there is a general demurrer, which was overruled by the district court, and, plaintiff refusing to reply or otherwise plead, judgment was rendered against it. This is alleged in this court as error. The material facts stated in the answer and admitted by the demurrer are substantially as follows: On the 6th day of July, 1889, more than SO electors residing within the territory described as the town of Lander, not exceeding two square miles in area, made application by petition to the board of county commissioners of the county of Fremont for the incorporation of the said town of Lander. All the preliminary proceedings are set up and shown to beta accordance with the law then in force. An act upon this subject was approved March 3,1890, but is not to affect any proceeding for the incorporation of any city or town commenced prior to January 1, 1890. The board delayed final action upon this application, and a writ of mandamus ordering them to pass the order for the incorporation of the town of Lander was sued out of the district court ol Fremont county. This order of mandamus, upon personal appearance by said commissioners, and due hearing had in said district court, was made peremptory. The board instituted proceedings in error in the supreme court of the territory. These proceedings were dismissed, and the judgment of the district court affirmed. The district court, at its July term, 1890, and on the 10th day of July, in obedience to a mandate from the supreme court, ordered a peremptory writ of mandamus to issue commanding the said board of county commissioners to make the order for the incorporation of the town of Lander. In compliance therewith such order of incorporation was duly made by said board of county commissioners on July 17, 1890. It is admitted that defendants
Plaintiff claims that the constitution repeals by implication the provision of law authorizing the incorporation of towns upon the application of 30 electors, and requires the consent of a majority of the electors residing within the district incorporated; and, therefore, thattheineor-poration of the town of Lander without such consent on July 17, 1890, though in obedience to a peremptory writ of mandamus, was illegal and void. The final order of the district court for the issuing of- this writ of mandamus was made on July 10, 1890. The constitution was then in effect. It is questionable whether the correctnesss of this judicial act of the court may be questioned in this action. It is true the parties to this action are nominally different from the parties to the suit for mandamus. But the matters adjudicated in that action are matters of public right in that community, and that adjudication would seem to be conclusive upon the citizens generally, and sufficient authority not only for the commissioners to incorporate the town, but also for the citizens to elect, under that incorporation, their town officers, and for those officers to assume and exercise the functions of their respective offices. That is to say, it would seem to be a final and conclusive adjudication of the legality of the order of incorporation which cannot be collaterally attacked. See Harmon v. Auditor, 22 Ill. App. 129, 123 Ill; 122;
13 N. E. Rep. 161.