32 Vt. 50 | Vt. | 1859
This is a motion and summons against the defendants, wherein the State’s attorney, as the representative of the sovereignty of the State, asks leave to file an information against the nominal and de facto corporation of the village Of Bradford,- for having usurped the prerogatives and franchises of a municipal corporation within the State, without the grant or
The corporation make no answer or defence in form, except to ¡put the prosecutor upon proof of the allegations contained in his information. We are satisfied from the evidence in the case, that there could not have been a legal majority of the voters present at the meeting in favor of accepting the charter, and that it did not therefore become a binding law. The organization therefore under it is a mere usurpation of corporate franchises, without any legal warrant.
In such cases the law is well settled, in England, that upon the information of the attorney general the court of King’s Bench will abate and dissolve the corporation, whether it be a private or public one. When the corporation is of a public character, like a town, or village, which constitute integral portions of the sovereignty itself, there is more propriety in visiting the usurpation of these important functions of sovereignty, with this formal denial of their right to exercise such usurpation, than in the case of a mere private corporation, but the law seems to be the same in either case.
It is only the sovereign power of the State which can create corporate franchises, and all who presume to exercise them without the consent of such authority are liable to this mode of proceednre.
We think there can be no question that the corporation de facto should bo dissolved.
And in regard to the other defendants it seems that they now disclaim any purpose of exercising the functions of the offices to which they were elected, and of which election a formal record was made, and which has been certified in this case by one of the defendants, as secretary of the usurping corporation. All that is requisite in regard to them will be effected by a judgment against the corporation, perhaps, but we see no reason why a judgment of ouster should not be formally entered against them. If the title to a corporate office is only defective from an irregular swearing in; the judgment against the party is only for a fine for the temporary usurpation, and that he do not further exercise
In regard to costs it is not customary in the English courts to award them against an officer'in a municipal corporation, where one is compellable to accept upon peril of indictment or penalty ; and from which no emoluments are ordinarily expected to arise. The King, at the relation of R. King v. Wallis, 5 Term. R. 375. But where there has been misconduct, either in the usurpation or unreasonable persistence in holding on upon the office, it may be proper to award costs. And by the statute of 9 Ann. c. 20, sec. 5, it is provided that the courts may in such case award both fine and costs against the defendant; and that the defendant shall recover costs against the relator, whenever he prevails in the trial.
In the case of State v. Boston, Concord & Montreal R. R. Co., 25 Vt. 445, it is said “ and as the proceedings have been in the name of the State, no costs can be awarded;” But upon further examination I am satisfied costs are awarded, in the English practice, in such cases, against the relator, whose name is there always brought upon the record, and should be here probably. The subject of costs in such proceedings is very elaborately discussed by Buller J. in Rex v. Wallis, 5 T. R. 375;
Judgment that the State’s attorney be allowed to file his information ; and therefore the court do adjudge that the facts therein set forth are true, and that the said pretended corporation of the
The reason we do not allow costs in this case is that there is no distinct evidence that these defendants have participated in any illegal or improper proceedings, in effecting the organization under the charter;
