This is an application to this court for leave to file an information in the nature of quo warranto. The application is made on the relation of George J. Walker, a private person, who is represented in this court by his attorneys, Henry S. Klein and S. E. Ellsworth. The Honorable O. D. Comstock, attorney general, opposes the application. The papers presented to the court consist of a written motion, signed by the attorneys for the relator, to which is annexed an information, verified by the relator, and these are supplemented by the affidavit of said S. E. Ellsworth. Omitting formal parts, the motion is as follows: “Now comes the relator above named, by his counsel, and moves the court that he be allowed to file in this court an information in the nature of quo warranto, which is hereunto attached and herewith presented, and that the respondent named in said information be, by a writ of this court, required, at a convenient time and place, in said writ named, to answer thereto, and show by what -authority it holds and exercises the powers and functions therein named and described over the inhabitants of the said territory therein described.” The information is as follows: “The above-named relator, George J. Walker, re
Briefs in support of the application have been submitted by counsel for the relator, and the attorney general has presented a brief in opposition thereto.
With reference to a preliminary matter of practice, we deem it proper to notice that the relator has not, by this proceeding, asked this court to issue the writ of quo warranto, but, on the contrary, has applied to the court for leave to file an information in the nature of quo warranto. In this, counsel have pursued the proper course. It is true that the state constitution, by section 87, expressly confers upon this court the power to issue the writ of quo warranto; and it nowhere authorizes this court, in terms, to proceed by information in the nature of quo warranto. Nevertheless, under the established construction of similar provisions in the constitutions of other states, it is held that the power to issue the writ embraces the authority to proceed 'by information, and the latter course is now almost universally pursued in all courts of this country. All the remedies which anciently could be had by the writ are now attainable by information in the nature of quo warranto, or in some states, as in this, by means of a civil action. As to the practice, see State v. Elliott (Utah) 44 Pac. 248; High, Extr. Rem. § 591; State v. West Wisconsin Ry. Co., 34 Wis. 197; People v. City of Oakland (Cal.) 28 Pac. 807; Rev. Codes 1899, c. 24 (Code Civ. Proc.). In the case at bar, counsel for the relators have, we think, properly assumed that the remedy by quo warranto may, in some form, be invoked in cases such as this, where it is alleged that a municipal corporation has been guilty of usurping political franchises by extending its governmental authority beyond and outside of its lawful boundaries. As to applying the remedy to such cases, as against the offending corporation, there is a conflict of judicial opinion; but, in our judgment, the weight of authority supports this practice. See State v. Board of Com’rs (Minn.) 69 N. W. Rep. 925, 35 L. R. A. 745; People v. City of Oakland (Cal.) 28 Pac. Rep. 807; People v. City of Peoria (Ill.) 46 N. E. Rep. 1075; State v. City of Cincinnati, 20 Ohio St. 18. We shall therefore concede the general proposition that quo warranto will lie to correct such alleged abuses and usurpations of corporate power as are here complained of, and hence the question
The precise question under consideration was carefully considered in State v. Elliott, supra, and we gladly avail ourselves of a portion of the opinion in that case, which meets our full approval. The court say: “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 bé 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 this tribunal as an appellate court, and yet its appellate power was the main object of its creation. No construction which would render such a result possible is warranted by the provisions
It appears from the moving papers that, before the application was presented to this court, the relator had prepared information “in all respects similar” to those now presented to this court, and caused each of such informations to be verified by one of the relators. Such informations were, however, framed for presentation to the district court, and it appears that counsel for the relators presented the same to the attorney general of the state, and, after explaining the nature and contents of such informations, the relators’ counsel requested the attorney general to “apply to the district court of the proper district for writs of quo warranto directed to the respondents named in said informations, or in case he, the said attorney general, did not care to appear and act personally in the matter, then to allow such application to be made in his name as attorney general of the state.” To this request it appears that the attorne)'- gen-' eral replied that “he would have nothing to do with the matter.” Upon such refusal, counsel for the relators applied to the district court for the counties of Pierce and McHenr)>- for the writs he was seeking; and, in doing so, counsel, at the request of the district court, left said informations in the hands of the presiding judge of that court. It further appears that the district court, by remaining silent
We do not wish to rule in this case, nor to intimate an opinion to the effect, that a mere refusal on the part of the district court, after a proper application, to entertain quo warranto proceedings in behalf of a private relator who sees fit to champion public interests in which he has no special interest, will alone suffice to give this court jurisdiction of such a proceeding. But in the present case it suffices to say that, in our judgment, no proper effort has been made in behalf of the relator to obtain a hearing in the district court. One of the respondents (McLean county) is not situated in the judicial district-in which the relator sought a remedy. Nevertheless the relator, so far as appears, wholly failed to apply to the judge of the district court in which McLean county is situated for leave to file an information. For all that appears, the district court for McLean county would, on a proper application therefor, have acted upon the information, and thereby initiated the litigation, which in due course could have been brought to this court on appeal as a test case. Nor is this all. The application which was made to the district court appears tó have been entirely irregular. The statute conferring upon suitors the privilege of seeking quo warranto remedies by means of civil actions was enacted for the purpose of denuding the remedy of its many technicalities, and thereby affording litigants a plain and adequate remedy by a familiar form of court procedure. But in the case at bar no attempt was made in behalf of the relators to institute a civil action. It does not appear that a summons or a complaint was ever framed in any of the cases, or that the attorney general was ever requested to appear in behalf of the state in any civil action to be instituted in behalf of the relators, or either of them, or that he ever refused to co-operate in bringing civil actions in the premises. Moreover, a perusal of the moving papers fails to disclose any allegations showing or tending to show that special facts exist in the present cases, calling for speedy action in the courts. The existing political status' in the several counties concerned is one which has existed for a period of ten years, and nothing appears tending to show that any actual wrong or inconvenience has been suffered by individuals or by the public at large as a result of the alleged usurpations of franchises. Upon such a showing, we discover no special exigency calling for the interposition of this court at the instance of any private relator. From our standpoint, the case is one calling for unusual caution, and the exercise of great deliberation on the part- of the judicial department of the state. Certainly nothing in this case calls for the hasty action which would be involved if this court should initiate proceedings by putting forth its prerogative powers in opposition to the advice of
Upon the considerations already stated, we are, in our judgment, justified in refusing to assume original jurisdiction in these cases. But there is another factor of prime importance, and one relating to the merits of the application, which, in our opinion, leads to the same conclusion. In these cases the remedy of quo warranto is not sought as a means of exercising superintending control of an inferior court, or in aid of the appellate jurisdiction of this court. On, the contrary, the relator is before this court with the avowed purpose of invoking its original powers. In such cases, as has been repeatedly held, the enumerated writs are not writs or right, but are strictly prerogative writs, and the same will issue only in cases pubUci juris, where the sovereignty of the state, or its franchises and prerogatives, or the liberties of its people, are directly, and not remotely, involved. In this class of cases the attorney general of the state, who is a constitutional officer, and one whose duty it is to represent the state and to vindicate its authority, is the proper person to initiate the pro-» ceedings; and it is his duty, as a sworn officer, to ask leave of this court to file an information in all cases where, to protect the interests of the state, it becomes necessary to invoke the prerogative jurisdiction of this court. True, cases have arisen, and may again arise, in which this court will,'for peculiar reasons, assume original jurisdiction at the instance of a private relator, but, as was said in State v. Wilcox, supra, “the cases are few and quite exceptional in which this court will, in behalf of the state, assume original jurisdiction at the instance of a private citizen.” Ordinarily a private person, who volunteers as a champion of only public rights, and as such invokes the prerogative writs, will be regarded as an intermeddler. It appears by the information, and more fully by the briefs of counsel in behalf of the relator, that the relator has suffered no wrongs peculiar to himself, but, on the contrary, the relator appears in this court solely as a champion of the state, and for the ostensible purpose of protecting governmental franchises from abuse. In presenting the case of the relators, counsel have first called the court’s attention to the fact that the county of Church, within which there never has been an attempt to organize as a county, is nevertheless a legally created county, in this: that it has been named and its boundaries have been defined by law. Counsel next proceed to call attention to the allegations of the informations, which are to the effect that' the counties named as respondents have respectively extended their authority and jurisdiction as counties over a portion of the territory
Upon this showing, especially with reference to the fact that the prerogative writ sought is not 'a writ of right, available to a private suitor, but is, on the contrary, a writ of grace, and one to be granted or withheld by the supreme court as sound discretion may dictate, it will be proper carefully to consider the existing political conditions in the territory involved in this proceeding, and, in so doing, take account of the conditions which will be superinduced within the territory in question if the existing governmental status therein were to be overthrown as a result' of these proceedings. Before assuming jurisdiction of these cases, it is, in the opinion of this court, very important to consider the consequences which will necessarily ensue if the relief asked by the relators is granted by this court; and this more especially in view of the entire want of power in this court either to rehabilitate the political machinery sought to be destroyed, or to create a new governmental status within the extensive region which would be affected if the relief asked were granted. It would be impossible, within reasonable limits, to anticipate and set out all the consequences likely to result from granting the relief sought in these cases, and, in presenting the practical aspects of the
But regardless of consequences, serious of otherwise, the relators insist that the counties of Pierce, McLean, and McHenry should,'by the judgment of this court, 'be compelled to withdraw from the territory over which they have exercised political franchises as counties for the period of ten years. This drastic remedy is claimed by the relators chiefly upon the ground that said act of 1891 is an unconstitutional enactment, within the rule laid down by this court in the case of Richard v. Stark Co., 8 N. D. 392, 79 N. W. Rep. 863, in which this court held that an act embraced in chapter 25 of the
In the light of authority, we are justified in saying that it would,, in our opinion, be an unsound exercise of judicial discretion to grant the relief sought by these proceedings, even if the applications were backed by the request of the attorney general of the state; and to grant the relief at the request of a private person, would, we think, involve a gross abuse of the powers of this court. The rule of the authorities is expressed in High, Extr. Rem. § 605, as follows: “And the principle i.s now firmly established that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made.” The authorities cited below fully sustain the rule above quoted. “The most important, if not the only, interest to be served, is that of the public. If that is kept constantly in view, -but little difficulty should be encountered. * * * ' The remedy is by no means a matter of absolute right on the part of the relator.” See Spell. Extr. Relief, § 1777; People v. Waite, 70 Ill. 25; People v. Moore, 73 Ill. 132; People v. Keeling, 4 Colo. 129; State v. Fisher, 28 Vt. 714; State v. Smith, 48 Vt. 266; Com. v. Cluley, 56 Pa. 270, 94 Am. Dec. 75.
We are clear that the relief sought should not be granted, and this court will enter an order denying leave to file the informations.