Armstrong v. State ex rel. Fain, Co.

CourtSupreme Court of Oklahoma
Citation116 P. 770,1911 OK 225,29 Okla. 161
Docket NumberCase Number: 2418
PartiesARMSTRONG et al. v. STATE ex rel. FAIN, Co. Atty.
Decision Date27 June 1911

¶0 1. QUO WARRANTO--Franchises--Usurpation--Parties Defendant. If the action be for usurping a franchise by a corporation, it should be against the corporation, but, if for usurping the franchise to be a corporation, it should be against the particular persons guilty of the usurpation by assuming to act in a corporate capacity, and not against the corporation as such.

2. COUNTIES--Organization of New County--Estoppel to Attack. Whether the organization of a new county is repugnant to the provisions of the Constitution pertaining to that subject is a judicial question, and the state is not estopped to question such organization upon that ground by a prior recognition thereof by the legislative and executive departments.

3. COUNTIES--Organization of New County--Popular Vote. Under section 4, art. 17, of the Constitution, before a new county can be created by transferring territory from an existing county or counties to the proposed county, such question shall be submitted to a vote of the qualified electors residing in the territory to be formed into such new county, and there must be 60 per centum of the vote cast in the particular territory detached from each county in favor of such transfer.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Quo warranto by the State, on the relation of J. A. Fain, county attorney, against J. E. Armstrong and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Moss, Turner & McInnis and Giddings & Giddings, for plaintiffs in error

J. A. Fain, Co. Atty., and L. M. Keys, for defendant in error


¶1 This was an action in the nature of quo warranto, commenced by the defendant in error, plaintiff below, in the district court of Comanche county, to dissolve what was alleged to be the pretended organization of the so-called Swanson county. The plaintiffs in error were defendants below, and were and are the persons holding the various county offices provided by law for carrying on the affairs of such a municipality. In the original petition various grounds were assigned why the pretended county should be dissolved and the pretended officers ousted from office, but by stipulation all allegations as to sufficient taxable area, population, and fraud in the election, which might be controverted or attended by delay in trying the issues, were eliminated, and the cause was presented on behalf of the plaintiff upon the theory that the proposed county being a "new county" and Comanche county an existing county, under section 4, art. 17, of the Constitution, before the new county could be legally organized, it would be necessary to have the approval of 60 per centum of the vote cast in the part of the territory of Comanche county sought to be transferred to the new county as a part thereof. It was alleged in the petition, and admitted by demurrer thereto, that 60 per centum of the vote cast in the territory belonging to Comanche county was not in favor of the transfer. It was further stipulated that:

"The court shall render final judgment in this cause upon the order of said court either overruling or sustaining defendants' demurrer to plaintiff's second amended petition, and in the event the court shall overrule said demurrer, final judgment thereupon shall be rendered as prayed for in plaintiff's second amended petition, ousting said defendants from their respective offices and dissolving and disorganizing Swanson county and in the event said demurrer is sustained, final judgment shall thereupon be rendered in favor of defendants."

¶2 The demurrer was overruled by the court and judgment of ouster rendered against defendants, and the present organization of Swanson county declared to be void. To reverse this action of the court, this proceeding in error was commenced.

¶3 Counsel for the plaintiffs in error in their brief, preliminary to the main question, present two grounds upon which they claim the judgment of the court below ought to be reversed, which will be noticed here: (1) That the proper party defendant, to-wit, Swanson county, was not before the lower court, as required by the statutes of the state, and that, therefore, any judgment rendered dissolving Swanson county would be as to Swanson county a nullity; (2) that the state of Oklahoma is estopped from denying the legal existence of Swanson county for the reason that through its executive and legislative departments it has recognized the county, and construed the law in defendants' favor.

¶4 The rule which seems to be supported by the great weight of authority is that, if the action be for usurping a franchise by a corporation, it should be against the corporation, but, if for usurping the franchise to be a corporation, it should be against the particular persons guilty of the usurpation by assuming to act in a corporate capacity, and not against the corporation as such. The petition alleges, in substance, that the state of Oklahoma, plaintiff, on the relation of J. A. Fain, county attorney of Comanche county, state of Oklahoma, complaining of the above-named defendants, respectfully shows to the court that the defendants, J. T. Armstrong, C. E. Bull and J. W. Wilcox, each claim to hold and occupy the office of county commissioner of the so-called county of Swanson, and as such are claiming to constitute the board of county commissioners of the so-called county, and as such are performing the duties and exercising the functions imposed by law upon the board of county commissioners, and will and are creating liabilities and allowing claims against said so-called county, and are in all things assuming to be a body politic and corporate within the state of Oklahoma. And it contains allegations to the same effect concerning the other officers, and further alleges that the so-called county of Swanson is not and never has been a legally organized and constituted municipal corporation of the state of Oklahoma; that the defendants are pretending to be officers of said so-called county under a pretended organization of same which was in violation of the Constitution and laws of the state, and therefore wholly illegal and void. In the case of State ex rel. Pros. Atty. v. South Park, 34 Wash. 162, 75 P. 636, 101 Am. St. Rep. 998, it was held that:

"An information cannot be directed against a corporation which it charges does not exist. In such case there is no entity in existence upon which service can be made or which can be pleaded to the information. It is illogical to sue an alleged artificial person for the purpose of obtaining an adjudication that there is no such person. Either there is or is not a corporation. If there is not a corporation, it cannot be sued. The suit, then, must be against the persons who assume to act in a corporate capacity. By bringing suit against the corporation appellant admits its existence. The information therefore does not state facts sufficient to constitute a cause of action, since it simply seeks an adjudication that there is not now, and never was, such a corporation."

¶5 In the case of People ex rel. v. City of Spring Valley, 129 Ill. 169, 21 N.E. 843, an action in the nature of quo warranto was brought against the incorporated city and Chas. J. Devlin as mayor, in which the legal existence of the corporation was attacked and said Devlin charged as being a usurper in office, praying for ouster and dissolution. The Supreme Court stated the rule to be that:

"When an existing corporation abuses any of its franchises, or usurps franchises which do not belong to it, the information should be against the corporation as such. But, when a body of men or a number of individuals unlawfully assume to be a corporation, the information should be against them as individuals, and not by their assumed corporate name."

¶6 In the case of State ex rel. v. Small, 131 Mo. App. 470, 109 S.W. 1079, quo warranto was commenced on the relation of the Attorney General against one Small and others charging them with usurping and exercising the duties of trustees of the town of Anniston, based on the further charge that the village of Anniston was never incorporated legally and had no corporate existence. In affirming a judgment of ouster and dissolution, the Supreme Court said:

"But it is said the order cannot be annulled in the present proceeding because the village of Anniston has not been made a defendant, and, as the corporate life of the town is attacked, it was a necessary party. Support is lent to this position by the opinion in State ex rel. v. Huff, 105 Mo. App. 354, 79 S.W. 1010; but the point was not essential to the decision of said cause, and the ruling ought to be disapproved, for it is opposed not only to the current of authority, but to decisions of our Supreme Court. The doctrine is accepted that when in a quo warranto proceeding, or one in the nature of quo warranto, the existence of a municipality is denied, the proper respondents are the usurping officials who wield municipal powers, and to make the town a party is illogical, because thereby its existence would be implied, which is the very fact denied. This proposition was decided in State ex rel. v. Coffee, 59 Mo. 59, 67; State ex rel. v. McReynolds, 61 Mo. 203, 212; State ex inf. v. Fleming, 147 Mo. 1, 9 (44 S.W. 758); Id., 158 Mo. 558, 567 (59 S.W. 118); State ex inf. v. McClain, 187 Mo. 409, 412, 86 S.W. 135; State ex rel. v. Gravel Road Co., 116 Mo. App. 175, 193, 92 S.W. 153; 17 Enc. Pl. & Pr. 437."

¶7 In the case of People v. Stratton, 33 Colo. 464, 81 P. 245, the Supreme Court reversed the court below saying:

"It is contended that, as the town is not a party to the proceedings, no judgment binding upon it can be rendered; that, the information being against the officers of the town, the regularity of the incorporation cannot be attacked in a

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