64 So. 23 | Ala. | 1913
Lead Opinion
The prolixity of the pleadings exhibited in this cause is such that detailed treatment is impracticable, if not impossible. Following the example of counsel, we shall under-take to discuss the pleadings only as they may be grouped under the several principles of law which we deem fundamental, to. a decision of the cause upon its merits.
The Birmingham Water Works Company was chartered by legislative act on February 13, 1885, for the express purpose of supplying the citizens of Birmingham and its suburbs with “an ample supply of good and pure water.” See B’ham W. W. Co. v. Birmmgham, 176 Ala. 301, 58 South. 204. Besides the general powers common to all corporations, the company was by this grant invested with particular franchises, including the right “to lay pipes and equeducts for conducting its water, and for that purpose make excavations through any of the streets, alleys or public grounds of the said city of Birmingham by and with the consent of the corporate au
On May 31, 1888, the city of Birmingham adopted an ordinance authorizing the water company to lay in its streets and public places its mains, pipes, and fixtures “for the use of said city and its inhabitants as herein provided.” Section 3 of the ordinance declares “that the water so furnished shall be clear, wholesome and suitable for all domestic and ordinary manufacturing purposes, and sufficient in quantity for the use of said city and its inhabitants.” Section 6 provides for street hydrants and the rate and terms of payment therefor by the city, and section 12 provides a schedule of maximum fiat and meter rates to be charged domestic and other consumers. These specifications are quoted in Smith v. Water Co., 104 Ala. 322, 16 South. 123. The ordinance contains sundry other provisions and requirements not necessary to be here stated, and as thus framed and passed it was forthwith adopted by the city and the water company as their mutual contract agreement to run for thirty years.
The breaches of duty charged against the respondent may be briefly summarized as: (1). Supplying to com sumers in a large territory for three years next before the institution of this suit, and also- during numerous specified shorter periods, by willful and long-continued neglect, water that was not wholesome. (2) Willfully neglecting for a year past, and also for three months in 1912, to supply about 20 families of its consumers in a certain territory with water sufficient for domestic
Before considering the merit of the case made by the information, it will be convenient- to state certain settled principles of law and public policy upon which our conclusions must be predicated:
1. It is the common law of this country, founded upon the English statute of 9 Anne, that an information in the nature of quo warranto lies in all cases originally served by the writs of quo warranto and scire facias, and embracing not only usurpations, but also abuses, either of corporate charters or particular franchises. And this proceeding is apt whether its purpose be to dissolve the corporation or to merely annul and forfeit a particular franchise. — State v. Moore, 19 Ala. 514, 420, 421; State v. Light Co., 246 Mo. 618, 152 S. W. 67; State v. A. & N. R. R. Co., 24 Neb. 143, 38 N. W. 43, 8 Am. St. Rep. 164, and note citing the authorities, 198-199; Peter v. Kendall, 5 Barn. & C. 703; 32 Cyc. 1425, 2; High on Ex. Leg. Rem. (3d Ed.) §§ 654,
2. Onr statutes (sections 5450-5472, Code 1907) first found in the Code of 1852 are intended to furnish a remedy coextensive in scope with the common-law information in the nature of quo warranto, and as to practice and procedure are exclusive of the common law which they have supplanted. — State v. Elliott, 117 Ala. 172, 23 South. 43.
3. Section 3513 of the Code, providing a remedy by bill in chancery in favor of municipalities against public service corporations operating under municipal franchise contracts, to enforce their performance, or in default thereof to declare such franchises forfeited and the corporations dissolved, is manifestly no bar to the remedy in the nature of quo warranto given to the state. The one looks merely to the enforcement of municipal contracts, while the other looks to the sovereign power of the state with respect to the use or abuse of franchises — which are special privileges — created by its authority, and which must as a principle of fundamental public policy, remain subject to its sovereign action in so far as the interests of the public, or any part of the public, are affected by their usurpation or abuse. — State v. Des Moines City Ry. Co., 135 Iowa, 694, 109 N. W. 867, 872; State v. Street Ry. Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. Rep. 742, 748: State v. B’ham W. W. Co., 164 Ala. 586, 51 South. 354, 27 L. R. A. (N. S.) 674, 137 Am. St. Rep. 69, 20 Ann. Cas. 951.
4. The remedy by quo warranto cannot be used for the enforcement or forfeiture of a municipal contract, although breaches of the contract which amount .to abuses of a franchise may support an information for the purpose of forfeiting the franchise or the charter of
5. A franchise granted by a municipality by legislative authority, special or general, is as much a franchise granted by the state as if it were granted directly by its Legislature. — Port of Mobile v. L. & N. R. R. Co., 84 Ala. 129, 4 South. 106, 5 Am. St. Rep. 342; State v. Railroad Co., 72 Wis. 612, 40 N. W. 487, 1 L. R. A. 771; State v. Railway Co., 140 Mo. 539, 41 S. W. 955, 38 L. R. A. 218, 62 Am. St. Rep. 742; San Antonio Trac. Co. v. Altgelt, 200 U. S. 304, 26 Sup. Ct. 261, 50 L. Ed. 491; Gainesville Water Co. v. Gainesville (1910) 103 Tex. 394, 128 S. W. 370; 3 Dill. Mun. Corp. (5th Ed.) § 1228. It follows, of course, that the abuse of such a franchise is equally a matter of state concern, and is punishable by forfeiture at the suit of the state.
6. The municipal ordinance or resolution which grants a franchise to a public service corporation may also comprehend the terms of a contract between the municipality and the service corporation, prescribing the obligations and restraints by which each is to be governed, and the conditions upon which the franchise is granted and may be exercised. In so far as such an ordinance is merely contractual in its nature, it is subject to revocation or rescission for such material breaches of its terms as would justify the rescission of other contracts by offended parties in interest. See Worthington v. Gwin, 119 Ala. 44, 52-55, 24 South. 739, 43 L. R. A. 382. But in so far as it grants a franchise, or. .consents to the exercise of a franchise granted on that condition by the state Legislature, it cannot, at least in the absence of express authority, be revoked by
7. It is implied, as the essential condition upon which corporate life and powers are granted to public service corporations, that they shall fairly and substantially perform the functions and discharge the duties for which they have been created. A willful and persistent failure to do so may subject their franchises to forfeiture, and themselves to dissolution — 3 Dill. Mun. Corp. (5th Ed.) § 1311; 10 Cyc. 1283(4), 1284e; State v. Light Co., 246 Mo. 618, 152 S. W. 67, 71. And this applies to all those subordinate duties and restrictions which necessarily inhere in their expressed charter or franchise obligations.
Unreasonable discrimination in service and in charges to consumers, though not expressly forbidden, would furnish an example of such breaches of implied duty on the part of a water company established to supply a town with water. — Lumhard v. Stearns, 4 Cush. (Mass.) 60; State v. B’ham W. W. Co., 164 Ala. 586, 591, 51 South. 354, 27 L. R. A. (N. S.) 674, 137 Am. St. Rep. 69, 20 Ann. Cas. 951. See, also, 84 Am. St. Rep. 188, 189, note, where numerous authorities are collected. So, also, would illegal combinations between service
8. In so far as the provisions of a municipal franchise ordinance or contract are, either by expressed stipulation or by reasonable implication, made conditions precedent to the exercise of the franchise, their material violation by the grantee would justify a revocation by the municipality of the conditional grant or consent. Having the power to grant or consent to the exercise of the franchise, the municipality has the implied power to prescribe at least conditions which are reasonable. — 3 Dill. Mun. Corp. (5th Ed.) §fl§ 1228-1230. On the other hand, mere regulations of future conduct in the exercise of the franchise, and stipulations of a commercial nature, are in general to be deemed conditions subsequent, for breaches of which the municipality may not revoke the franchise — a power which,. as we have seen, resides only in courts and is to be invoked by appropriate judicial proceedings.
9. When a company is chartered to supply a city and its people with water, it is of necessity contemplated by the Legislature that such company will enter into a franchise contract with the city; and it is implied, as an essential condition of the grant, that such company will have or develop the facilities for such a service, and also that it will in fact conform its conduct and its service to the requirements of its franchise contract — at least with reasonable fidelity to all of its vital stipulations. And by willful and repeated violations of clear duty, whether of misuser or nonuser, it offends against its charter, and abuses its municipal franchise, in such sense as to subject both charter and franchise, or either, to forfeiture in the sound judicial discretion of the
The information in this case was evidently framed under subdivision 1 of section 5453 of the Code: “When any person usurps, intrudes into,-or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state” — in which case an action may be brought in the name of the state against the offending party for the purpose of excluding such person from such office or franchise. — Code, §§ 5453, 5465.
The demurrers make the point that, as the information shows that respondent is in the exercise of a lawfully created franchise, it states no cause of action under this statute — which, it is contended, applies only
Looking alone to the language of section 5450, we might reasonably give to it the construction contended for by respondent, viz., that “unlawfully exercising” a franchise means exercising it without authority of law. This would be its strict, and perhaps its more natural, meaning. But we cannot so view it. Of the scope of our statutory remedy this court long ago declared that the “system was manifestly intended to be, and is, a complete one, covering the whole subject, taking the place of the common-law remedy. * * * Indeed, the statutory' system preserves, substantially, the principles of the common-law remedy, only regulating, as within perfect legislative competency, by whom, in whose names and behalf, and by what procedure, public and private rights, which the common-law informar tion was adequate to redress, should be set on foot and adjudicated.” (Italics ours.) — State v. Elliott, 117 Ala. 172, 23 South. 43.
It is certain that the remedy at common law embraced the annulment or revocation of franchises for their abuse, independently of the forfeiture of corporate charters; and it is certain also that a right of action on that ground can be traced, if it now exists, only to the language of subdivision 1 of section 5453. It is, of course, to be conceded that the argumentum ab inconvenienti can never justify a court in stretching the language of a statute beyond its reasonable import in response to supposed necessity. But, nevertheless, that
The language here in question is: “When any person usurps, intrudes into, or unlawfully holds or exercises * * * any franchise within this state.” In view of the manifest purpose of the Legislature in the enactment of our several statutes on this subject, it is not a strained interpretation of the phrase “unlawfully exercises” to give to it a broader meaning than its prior alternative “usurps,” and to hold that it comprehends the unlawful use or abuse of an actually existing franchise, and not merely the unauthorized assumption of one.
This, it is to be observed, acquits the Legislature of the inexplicable folly of renouncing for the state its unquestionable right to proceed against corporations for the forfeiture by abuse of particular franchises, without at the same time taking the life of the corporation, and of renouncing also its right to forfeit such franchises in individuals in any case — for section 5450 applies only to corporations — and, finally, of immunizing against this important and vital remedy all foreign corporations holding and exercising franchises within this
In this conclusion we are not without the support of eminent judicial authority. Our statutes (section 5450 and section 5453) are as to their specifications literal copies of the original New York statutes as found in 2 Rev. St. of New York, 1829, § 28 art. 2, c. 7. See Thompson v. People, 23 Wend. 537; People v. Directors, etc., 23 Wend. 222; and Gilbert’s Ann. Code of New York (1910) §§ 1798 and 1948.
In the case of People v. Blecker St. & F. R. R. Co., 140 App. Div. 611, 125 N. Y. Supp. 1045, which was an action by the state for the forfeiture of certain municipal franchises, the main question was upon demurrer whether the information stated any cause of action under the Code. Said the Supreme Court: “The Legislature in abolishing the writ of quo warranto did not intend to deprive the court of jurisdiction in cases of this kind. It was merely intended to change the form of procedure and that the relief which formerly was obtained by quo warranto and by informations in the nature of quo warranto and by scire facias should be had in actions or by motions as prescribed in the Code of Civil Procedure. [Citing authorities.] We. should expect, therefore, to find by some appropriate provision of the Code of Civil Procedure authority conferred on the Attorney General to maintain such an action, and we think it was conferred by section 1948, subd. 1. That section, so far as material, provides as follows:
So the Supreme Court of Wisconsin, construing their statutes which are literal copies of the original New York statutes, and adopted therefrom, in an able opinion by Marshall, J., has announced the same conclusion. — State v. Portage City Water Co., 107 Wis. 441, 83 N. W. 697. See, also to the same effect, State v. Port of Tillamook, 62 Or. 332, 124 Pac. 637.
Our attention is called to the irreconcilable conflict between the recent cases of State, ex rel. Sigsbee v. City of B'ham, 160 Ala. 196, 48 South. 843, and City of N. B’ham v. State, ex rel. Sparks, 166 Ala. 122, 52 South. 202, 139 Am. St. Rep. 17, Ann. Cas. 1123; the former
It would seem, on principle, that injunction would be an adequate remedy to prevent tbe invasion of private rights by municipal officers acting unlawfully because intruding beyond tbe lawful limits of their territorial jurisdiction or authority. But it would seem, also, that when tbe municipality itself intrudes as such into non-municipal territory, it is usurping a franchise tbe right to which can be and ought to be tested and determined by quo warranto at tbe suit of tbe state. See State v. Board of Commissioners, 66 Minn. 519, 68 N. W. 767, 69 N. W. 925, 73 N. W. 631, 35 L. R. A. 745; Atlee v. Board of Supervisors, 94 Mich. 562, 54 N. W. 380; People v. Peoria, 166 Ill. 517, 46 N. E. 1075; Ogle v. Belleville, 143 Ill. App. 514, affirmed in 238 Ill. 389, 87 N. E. 355; State v. Tillamook, 62 Or. 332, 124 Pac. 637; State v. Collegeview, 88 Neb. 232, 129 N. W. 296; East Dallas v. State, 73 Tex. 371, 11 S. W. 1030; and many other authorities cited in note to Uniontown v. State, 145 Ala. 471, 39 South. 814, 8 Ann. Cas. 320, 323.
This is tbe view of tbe writer, but tbe court does not feel authorized to resolve tbe conflict noted in our cases until tbe question dealt with therein is specifically presented. It will suffice for present purposes to say that in so far as tbe decision in tbe Sparks Case, 166 Ala. 122, 52 South. 202, 39 Am. St. Rep. 17, 21 Ann. Cas. 1123, is based upon a construction of section 5453 of tbe Code at variance with tbe conclusions herein announced, it is expressly disapproved.
With respect to tbe last amendment to tbe information, intended to bring it within tbe scope of section
Turning now to the substance of the charges presented by the information, we state the following conclusions: (1) Specifications A to I, inclusive, and Q, R, S, and U sufficiently and clearly charge that the water actually supplied by respondent to its consumers was not wholesome. This charges not only a violation of the most vital requirement of the franchise ordinance, hut. a violation also of the charter itself; for water which is not wholesome is certainly not “good and pure.” Obviously, the vice of respondent’s conduct in this particular must be determined in view of all of its derelictions, since willfulness and persistency therein must be the basis for the judicial action sought.
(2) Neglect, though willful, to supply any particular persons with water, is not an offense on the part of respondent, unless it amounts to a refusal to do so upon reasonable and proper demand. Hence specifications J, K, and L show no breach of duty by respondent. Properly amended, they might unquestionably charge offenses so willful, so numerous, and so repeated as to show prima facie a good cause of action.
(3) The duty of supplying water to the fire hydrants located on its mains with sufficient pressure for their
Nevertheless, we think that all willful breaches of clear duty may in combination be properly considered upon the general question of willful and persistent abuse of the franchise; and may, if sufficient in number and gravity, justify a forfeiture — a conclusion to be reached, however, npon a trial on the facts, and not upon a consideration-of the pleadings merely.
(4) Where a duty or restriction is not expressed in terms, and does not arise by clear and necessary implication, a violation thereof cannot be fairly regarded as a willful and culpable breach of duty if done in good faith under claim of right. The proper course in such cases is to test the right of the matter by other appropriate remedial action; and, if the judgment of the court establishes the duty adversely to the service company, thereafter a willful breach would be culpable in the sense now under discussion.
We judicially know that the alleged duty of respondent to lay service pipes from its mains to the property lines of applicants for water service, as an implication of law, is a mooted question as to which the courts of the county have not uniformly agreed.
In this state it is not yet settled, and, however we might be disposed to view it, we do not regard it as a willful and culpable breach of duty by respondent to now decline to furnish such pipes at its own expense; though it is proper to say that the great weight of authority in other states seems to recognize .and impose
(5) By the terms of the franchise ordinance and contract as construed by this court (Smith v. B’ham W. W. Co., 104 Ala. 315, 16 South. 123), respondent is bound to furnish water to domestic consumers at stated flat rates, for dwellings, water-closets, and bath tubs. To charge such consumers at meter rates is a breach of the franchise obligation, and is equally a breach of charter limitation as set forth in section 8 thereof. To do so willfully and persistently must be deemed prima facie an abuse of its franchise and an offense against the law of its creation, of sufficient gravity to authorize the forfeiture of either. Specification P sufficiently charges this offense.
(6) Specifications AA and BB, as added by last amendment, sufficiently charge a breach of the fundamental duty prescribed by respondent’s charter to furnish a supply of “pure” water to its consumers. Of course, “pure,” as here used, does not mean chemically pure, but only such freedom from foreign matter and bacterial elements as to render the water wholesome, and fit, and safe for domestic use.
It is not necessary that the information should explain why the water is not pure, or set out the evidence upon which the charge is based. Impurity is in itself a fact and not a conclusion.
Looking to the substance of the information, as first amended, it must be deemed of no material importance that the misconduct specified is charged to be a breach of the “franchise contract,” instead of the franchise merely, since, being identical in terms, a breach of one must be a breach of the other. Nor that the special
The merit of the information rests upon neither the theory of the pleader, nor his notions of the appropriate relief to be granted, but primarily upon its allegations of misconduct. If these be sufficient to show a cause of action, the court may administer such appropriate relief as is germane to the general nature and purpose of the proceeding.
We hold, however, that under our system the relief administered must be confined to either section 5465 or section 5466 of the Code. A single proceeding cannot comprehend a duplex action under both section 5450 and section 5453. And if the allegations would support relief under either, the petitioner must elect to proceed under the one or the other.
It results from what we have said that the trial court erred in sustaining the demurrers to the information as first amended, and also as last amended.
The judgment will be reversed, and the cause remanded, so that the information may be reframed, and the cause proceed to trial in accordance with the principles above enunciated.
Reversed and remanded.
Dissenting Opinion
(dissenting). — I cannot fully concur in either the opinion or the decision of the majority. In my opinion the majority have in part misconstrued our statutory proceeding in the nature of quo warranto, under which this proceeding is filed. It is decided in this case that a private corporation, as an entity, may be proceeded against under section 5453 of
Our statutory system in the nature of, and as a substitute for, the common-law writ of quo warranto, provides in unmistakable language that, if the state desires to proceed against a corporation as such, the proceedings must be had under section 5450 of the Code; and that if you desire to proceed against- individuals for usurping office, or corporate or franchise rights, you must proceed under section 5453 of the Code. To show that this is true, you have to read the two sections in connection with each other. They read as follows:
“An action may be brought, in the name of the state, against the offending corporation, on the information of any person for the purpose of vacating the charter, or annulling the existence of any corporation, other than municipal, whenever such corporation — (1) Offends against any of the acts creating, altering, or renewing such corporation. (2) Violates the provisions of any law, by which such corporation forfeits its charter, by abuse of its powers. (3) Has forfeited its privileges or franchises by failure to exercise its powers.
(4) Has done or omitted any act which amounts to a surrender of its corporate rights, privileges, and franchises. (5) Exercises a franchise or privilege not conferred on it by law.” — Section 5450.
The only possible event or contingency in which a corporation can be proceeded against, under the latter section, is expressly provided in section 5456 of the Code, which reads as follows: “When the action is against persons acting as a corporation without being duly incorporated, the alleged corporation may be ■joined as a party defendant, and such joinder does not admit its corporate existence, or otherwise prejudice the case of the plaintiff; a judgment and execution may go against it by its alleged corporate name, as in other cases.”
Our statutory system had existed for more than 50 years before section 5456 ever appeared as a part of it, and before which there was no authority for proceeding against the corporation under section 5453, and there is now no authority except in the case provided for in the statue. If the corporation could have been proceeded against under section 5453, prior to the adoption of section 5456, which first appeared in the Code of 1896, what was the use of section 5456, and why limit its application to the case mentioned in the statute? That section 5453 did not apply to corporations, and that they could not be proceeded against by virtue of it was in effect decided by this court in the case of Leigh v.
It having been thus decided that the writ issued under section 5453 ran against “natural persons or a collection of natural persons,” and not against artificial or corporate persons, and that its only object was to inquire “by what right any number of persons, one or more, exercised or enjoyed a franchise, and determined that right,” and that it afforded “no relief for official misconduct, and that it could not be employed to test the legality of the official action of public or corporate officers,” and the statute having been re-adopted with this theretofore undoubted construction, section 5456 was adopted as a part of the system to authorize proceedings against the corporation in one case only, mentioned in section 5456 of the Code.
It is true that section 1 of the Code provides that the word “person,” when used in the Code, includes “cor
The above-quoted language from Chief Justice Chilton could never be more aptly applied than in the case at bar. Here the statutes clearly say: “You may proceed against corporations and persons by the statutory action in the nature of quo warranto. If you desire to proceed against the corporation, you must proceed under section 5450 of the Code, for one of the five offenses enumerated in that section. See section 5450. If you desire to proceed against a person, or an association of persons, you must proceed under section 5453 of the Code, for one of the three offenses or grounds mentioned in this section.” This remained the law continuously, until the Code of 1896 was adopted, when section 5456 (present Code) was adopted, and this provision ingrafted upon the law an exception to the effect that when the proceeding was under section 5453, against persons, for acting as a corporation without being duly
This is therefore the only instance in which a corporation may be proceeded against under section 5453., And it has been only in such a case that a corporation, has ever heretofore been proceeded against under section 5453. In the case at bar, no persons are proceeded against, for acting as a corporation without being; duly incorporated, and hence section 5456 cannot apply. I contend that under all, or any, of the facts alleged in this complaint, it not only appears that no proceeding.can be had under section 5453, but that it also appears, affirmatively and authoritatively, that the state cannot proceed under this section. If any coloring of a case is - made, it is under section 5450, and not under section. 5453 or section 5456.
I do not believe that, before the filing of this information in the lower court (except as I shall further show), it was ever contended that a corporation, as such, could be proceeded against under section 5453, except in the-one solitary contingency provided for in section 5456. I may be wrong in this, but I do not think I am. I have-of necessity been required to examine all the statutes of' a general nature, which have ever operated in this state, and of necessity to examine every decision and opinion of this court, from the first one reported in Minor to the-the last one reported in 174 Alabama; and I must confess that I have never seen a statute or a decision (unless it be the one in Tillis v. Brown, 154 Ala. 403, 45 South. 589) until this one, which in my judgment would authorize a proceeding under section 5453 of the Code, under the facts averred in the information in this case.. To my mind this decision and opinion is revolutionary •„
It was never contemplated by those who drafted or enacted section 5453 of the Code that one of the franchise rights of a corporation properly granted, should be taken away from it, for a failure to exercise such franchise right, or for the improper exercise thereof. This much is made certain by section 5450 of the Code, which makes a failure to exercise its privileges, franchises; or powers a ground for forfeiture, for the complete vocation of its charter, for the annulment of its existence as a corporation.
Under our statute a forfeiture of any one of a corporation’s franchise rights is made a specific cause or ground for the annulment of the corporation’s entire charter and its corporate existence. I concede that but for our stattues a franchise right, once granted, might be taken from a corporation for “neglect, abuse, or surrender,” without further disturbing its charter. But our statute (section 5450 of the Code) makes a forfeiture of any franchise right or power a ground for vacating the charter or annulling the existence of the corporation under the same section, and provides that in such cases “judgment must be rendered that the corporation be excluded from such corporate rights, privileges, and franchises, and be dissolved.” The only instance in which a corporation can be proceeded against for exercising a given franchise not granted or conferred is where the corporation itself has usurped, or unlawfully holds or exercises, such franchise. Section 5453 of the Code applies only where there is a holding, or an exercise, of franchise rights by individuals without authority of law; it has not now, and has never had,
In other words, section 5453 is to prevent action by a person or corporation not lawfully authorized to act; while section 5450 is to punish a corporation which is authorized to act, for its failure to act, or for the doing of the act improperly, and to prevent it from further exercising rights which it possesses.
There is no complaint in this case that the corporation proceeded against has no right to exercise the functions here complained of; the whole theory is that the corporation has the right, and that it is its duty, to exercise the franchise rights, but that it has failed to properly exercise such franchise rights and to discharge the duties imposed upon it by the grant which conferred the franchise rights. For this reason, there is shown no color of right to proceed under section 5453 of the Code. The proceeding, therefore, of necessity, must be under section 5450 of the Code. It cannot be under both see1 tions, because the facts necessary to authorize the proceeding under the one would absolutely, affirmatively, deny the right to proceed under the other. I do not mean to say that the information or complaint at present filed in this case is sufficient to authorize the state to proceed under section 5450 of the Code; but I do say
The basic error in this decision, and in the majority opinion, is in treating a mere failure to perform and discharge the duties imposed by the grant of franchises, as an “unlawful exercise” of the franchises within the meaning of section 5453 of the Code. I take it that the “unlawful exercise” of a franchise, within the meaning of this section, is the exercise of the franchise without authority of law. This interpretation is conclusively borne out by the context, and by other words used in the same phrase and connection, such as “usurps” and “intrudes into.” You cannot usurp nor intrude into an office, if the law makes it your duty to hold the office and to exercise the powers and discharge the duties thereof; and if the law confers rights, and imposes duties, upon you as to such office, your failure, total or partial to exercise the functions and to discharge the duties, does not make you an intruder or an interloper. The same is necessarily true as to a franchise which a corporation as well as an individual may hold and exercise. This seems to me to be so plain that argument or reasoning cannot make its meaning clearer or more certain.
If the information in the nature of quo warranto is intended to oust the defendants from acting as a corporation and to test the fact of the incorporation, it must of necessity be filed against individuals; but if the object is to effect a dissolution of the corporation which has an admitted existence, or is merely to oust such corporation from some franchise which it is unlawfully usurping, the information must then be filed against the corporation as an entity.
If the proceeding is to forfeit a franchise lawfully acquired and held, for neglecti of public duties enjoined
Under section 5450 of the Code, you allege that the defendant corporation has the right to use the franchise,
Under section 5453 of the Code, the defendant or respondent must either disclaim the office or franchise, or affirmatively show authority to hold or to exercise the same; a plea of not guilty is no answer, because the complaint or information requires the defendant or respondent to show by what authority he holds the office or franchise in question. The only appropriate pleas under this section are those of disclaimer or of justification. The plea of justification is essentially a plea asserting title to the office or franchise, and must set out the source of the title claimed by the respondent. If the plea shows a bad title, judgment may be rendered against the defendant on demurrer to the plea.
The information in this case not only admits, but affirms, that the respondent was properly incorporated and properly invested by grant with title to the franchises complained of; it does not attempt to show that its franchises have been usurped, but alleges that the same are misused, and therefore forfeited; and that for this reason the franchise should be returned to the state, the sovereign, from whence it proceeded.
Judgment of seizure of the franchise is the only judgment proper to be rendered, if the allegations be sufficient. Such a judgment is the only judgment contemplated under section 5450 of the Code. The judgment
The forms of judgment prescribed by sections 5465 and 5466 of the Code show this: Section 5465 shows the kind of judgment to be rendered when the proceeding is under section 5453; and section 5466 shows the kind of judgment to be rendered when the proceeding is under section 5450. The majority opinion proceeds upon the idea that the kind of judgment prescribed by section 5465 can be rendered under an information like the one filed in this case. To this I cannot agree. The only judgment which can be rendered on an information containing the allegations which the one in question contains is one of the kind described in section 5466 of the Code. How could any court adjudge this respondent guilty of usurping, intruding into, or unlawfully holding or exercising its franchise, when it is alleged repeatedly that the franchise was lawfully granted, and that both the law and the contract enjoined the duty of exercising it? Such a judgment on such an information could not be supported. The judgment would not only fail to be supported by the pleading, but would be plainly and exactly contradicted thereby.
The opinion has also misconceived the statute as to ' the right of jury trial.. It is said that each of the parties has the right to demand a jury trial, at the time,
The history of section 5458 is well known. This court held that in proceedings under this article of the Code, relating to quo warranto, the Constitution did not guarantee the right of jury trial, and that, in the absence of a statute to that effect, the court might try without a jury. The Legislature, to meet this decision, passed the act of February 21, 1893, which is codified as section 3425 of the Code of 1896, and brought forward as section 5458 of the Code of 1907; and this statute provides that either party may demand and secure a jury trial, if moved for within the time and in the mode prescribed under the statute; and how it can be said that it applies only when the proceeding of quo warranto, or the information in the nature thereof, -is brought under one section of that article of the Code, and not under the other, is more than I can understand.
The opinion in this case modifies, if it does not overrule in terms, one or more decisions in this court. To this part of the opinion I cannot agree. There may be some other erroneous decisions of this court on the subject óf quo warranto proceedings, but in my opinion they are not those pointed out in the majority opinion.
The fact (which the majority opinion entirely overlooks) is that there are other sections of our Code which exclude corporations from the operation of section 5453 if the section, standing alone, would allow it. The majority opinion also overlooks or ignores the fact that, if a corporation can be proceeded against under this section, it cannot be so proceeded against unless it is alleged that it has done one of the things specified in one of the three subdivisions of that section; and I do not think that it can be said that it is averred, or attempted to be averred, in this information, that the defendant corporation has done, or is doing, anything prohibited in either of those subdivisions.