89 So. 514 | Ala. | 1921
This is an action in the nature of a quo warranto against the municipality of Tallassee and the individuals acting as its mayor and aldermen, for the purpose of dissolving it as a corporate entity and ousting the individual respondents from the exercise of the powers of their office.
The principal grounds of attack as to the validity of the incorporation proceedings rest upon the insufficiency of the description of the property to be embraced as a part of the municipality in the petition filed before the probate judge. The cases of Foshee v. Kay et al.,
The answer sets up several matters of defense, among them being that of res judicata, as disclosed by paragraph 8, the substance of which appears in the foregoing statement of the case. Another defense most strenuously insisted upon is that which appears in paragraph 7, wherein it is insisted that the state has long acquiesced in the exercise of corporate functions by the municipality, and circumstances disclosing that important public interests have become affected, and that on account of such considerable delay sound judicial discretion requires a denial of such relief, and refusal to oust the municipality from the exercise of its franchises. In support *171
of this defense is cited the case of Attorney General ex rel. Mann v. City of Metheun (Mass.)
It appears from the pleadings and proof that within a year after the incorporation of this municipality a proceeding in the nature of a quo warranto was begun in the name of the state, on the relation of J. H. Cole and J. H. Cole individually, against the town of Tallassee and the individuals holding the positions of mayor and aldermen thereof, seeking the dissolution of the corporate entity upon practically the same grounds as appear in the instant case.
The principal cause set forth in the petition in the cause here under consideration, that of the insufficiency of the description of the area involved, was also one of the grounds on the former attack. Respondents interposed demurrers in the former action, which were sustained. Relators declined to amend the information, and final judgment was entered in favor of the respondents. The ruling of the court thus appears to have been upon the merits, and not upon any mere question of amendable defect in pleadings or for any such question as misjoinder of parties. Under these circumstances we are of the opinion that the judgment rendered was tantamount to one upon the merits on a final submission. This question is discussed in 2 Van Fleet's Former Adjudication, § 309; and the following cases are also in point: Perkins v. Moore,
The only remaining question, therefore, is whether or not this judgment may be properly pleaded as res judicata in this action. This question was considered by the Court of Civil Appeals of Texas in the case of McClesky v. State ex rel.,
It is to be noted in the first place that the relator in the former litigation, as well as in the instant case, does not seek the assertion or protection of any private right, but merely acts for and on behalf of the public generally.
The question was also discussed by the Supreme Court of Illinois in People ex rel. v. Harrison, supra, with like result, and there it was pointed out that in such cases, where no private interest is involved, the right sought to be enforced is a public right, wherein the people are regarded as the real party in interest. The case of State ex rel. Smyth v. Kennedy,
"The very essence of judicial power is that when a matter is once ascertained and determined it is forever concluded when it arises again under the same circumstances and conditions between parties or their privies."
The opinion also quotes from authorities to the effect that a judgment in quo warranto is final and conclusive, and that such is also the effect of a judgment in the more modern proceeding in the nature of a quo warranto. The cases of Shumate v. Supervisors,
It is not questioned that the subject-matter of the former litigation was identical with that here involved, and the judgment rendered was by a court having full jurisdiction of the cause. While the nominal parties in the two suits are different, yet the real parties are the same, for the actors in both suits represented the public, and the respondents represented not only the municipality but the inhabitants thereof. This is pointed out very clearly in 1 Freeman on Judgments, § 178, as well as by some of the authorities cited therein.
As contrary to this view counsel for appellee cite State v. Stock,
We have concluded that upon both principle and the weight of authority the defense of res judicata should be held to be sustained. It was indicated in State ex rel. Knox v. Dillard,
129 Am. St. Rep. 54, is here very much in point by way of analogy. That was a case of petition by a taxpayer of the city of Montgomery seeking writ of mandamus to compel the city of Montgomery to put in force the provisions of a certain act which provided for the establishment of a board of commissioners of police. It appeared that previously another taxpayer (one Thomas) had filed a similar petition seeking the same end, attacking the constitutionality of the act. Upon appeal in that case it was held the act was unconstitutional; the decision being rested upon a previous ruling of the court in Little v. State,
"It would seem, then, that there should be some limit to such proceedings. If, after the determination of such a question, any other citizen could inaugurate similar proceedings and relitigate the same questions, the matter would never be finally settled until every citizen in the city had haled the city council into court and thus kept them in continual litigation."
It was further held that whether or not the former decision was correct will not be inquired into, the court saying:
"For this court to inquire into the question as to whether the former decision was erroneous or not would be to destroy the doctrine of res judicata, which the wisdom of our laws has set up for the protection of the citizens."
However, as said in the case of Ashton v. City of Rochester,
"But the judgment of a court of competent jurisdiction will sometimes operate as an estoppel and a former adjudication against persons who were not named in the proceeding and who were not parties to the record by name. It is enough if they were represented in the action or proceeding which resulted in the judgment, or were entitled to be heard. When a judgment is rendered against a county, city or town in its corporate name, or against a board or officer who represents the municipality, in the absence of fraud or collusion, it will bind the citizens and taxpayers. This is upon the principle that they are represented in the litigation by agencies, authorized to speak for them, and to protect their interests."
Upon principle we consider the Walker Case as decisive of the instant case. Only a public question was involved. Only the public interest concerned, and if the mere fact of a change in the nominal party is to prevent the application of the rule of res judicata, there could then be no stability of decision upon questions of this character, which would always be open to attack.
We are therefore of the opinion that this defense was well sustained by the proof, and that the court below erred in granting the relief prayed. The judgment will therefore be here reversed and one rendered dismissing the proceeding.
Reversed and rendered.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.