State ex rel. Wetzel v. Tracy
51 N.W. 613
Minn.
1892
Check Treatment
Yanderburgh, J.

This is an information in the nature of quo warranto, brought at the instance and upon the petition of the relators, private persons, to test the validity of the incorporation of the village of Minneapolis Park. In the case of State v. Parker, 25 Minn. 218, which was an action brought by the attorney general in the district court, under 1878 G. S. ch. 79, it was held that the question whether a certain office could be lawfully exercised in a particular district might be determined in a suit of that character, directly against the party who was alleged to be usurping the functions of such office. It was not, however, questioned that such action might also have been brought directly against the defacto or pretended corporation or body of which such party claimed to be an officer. This is not an action under 1878 G. S. ch. 79, but the writ was allowed and issued in pursuance of 1878 G. S. ch. 63, § 1, and the proceedings must be governed by the rules of the common law. State v. Sharp, 27 Minn. 39, (6 N. W. Rep. 408.) The term “quo icarranto,” used in that section, must be deemed to refer to “an information in the nature of quo warranto” as existing at the common law. State v. West Wisconsin Ry. Co., 34 Wis. 197, 208, 213. Such proceeding maybe brought against individuals for intrusion into public offices, and against private and public corporations for usurpation of franchises, or to oust *500them from the enjoyment thereof. There is no sound reason for the rule suggested on the argument, which would warrant the court in holding, in a case like this, that, by proceeding against the defacto or unauthorized corporation by name, the legal existence of the corporation is admitted. The question goes directly to the right of the corporation to exercise the corporate franchise, and the state may proceed directly against it. State v. Bradford, 32 Vt. 53; People v. Clark, 70 N. Y. 518; State v. Atlantic Highlands, 50 N. J. Law, 457, (14 Atl. Rep. 560;) 1 Dill. Mun. Corp. 265; 2 Dill. Mun. Corp. 1080.

The objection is urged by the respondents here that the proceeding to test the corporate franchise must be prosecuted by the Attorney General in behalf of the state, and that it cannot be sustained upon the relation of a private person only; and this will be found to be the rule at the common law, and generally recognized by the courts. Municipal, as well as private, corporations can only exist by the authority of the state. They derive their franchises from the state, and it is therefore the peculiar province of the state to inquire into the misuser or usurpation of such franchises. Assuming the existence of a corporation, a private citizen, if he has sufficient interest to support the application, may, by this proceeding, be allowed to contest the right of an alleged intruder to an office of such corporation. But where the object is to test the right of a corporation to exercise the corporate franchise, a privilege derived from the sovereign, the information must be filed by the Attorney General on behalf of the state. The proceeding is necessarily one of a public nature, and must be prosecuted by and in behalf of the public. In such cases it is not instituted for the redress of private grievances or the enforcement of private rights. Heard’s Shortt, Extr. Rem. pp. 717, 719; State v. Vickers, 51 N. J. Law, 180, (17 Atl. Rep. 153;) State v. Paterson & H. Turnpike Co., 21 N. J. Law, 12; Murphy v. Farmers' Bank, 20 Pa. St. 415; Reg. v. Staples, 9 Best. & S. 928, note; People v. Grand River Bridge Co., 13 Colo. 11, (21 Pac. Rep. 898;) Commonwealth v. Union Fire & Marine Ins. Co., 5 Mass. 230.

The relators show that their lands included within the corporate limits are comparatively remote from the village settlement; too distant, they claim, to be lawfully included in the village; and they con*501tend that they are especially aggrieved. But their interest is common to all the inhabitants. The incorporation, if invalid, is so as respects all the lands included, and the court cannot modify or change the limits or act of incorporation. The sole question in the ease is whether the village is lawfully constituted, and to test this the writ must be sued out and on behalf of the public, and the prosecution be conducted on its behalf by the Attorney General. It is true that the application is indorsed with his approval, but that is mere matter of form. He does not appear. ■ It is not his application, and it was not presented or prosecuted by him or on behalf of the state. This does not satisfy the requirement of the law,' in such a case. People v. North Chicago R. Co., 88 Ill. 537. If similar cases have heretofore at any time been brought and heard without objection, ii is because the question here presented and considered was not raised. The respondents were entitled to raise it on the hearing.

Writ discharged.

(Opinion published 51 N. W. Rep. 613.)