Mitchell v. Carter

• Decision Date: 12 March 1912
• Docket Number: Case Number: 2796
• Citation: 31 Okla. 592,122 P. 691,1912 OK 204
• Parties: MITCHELL v. CARTER.
• Court: Oklahoma Supreme Court

1912 OK 204

122 P. 691

31 Okla. 592

MITCHELL v. CARTER.

Case Number: 2796

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 MUNICIPAL CORPORATIONS -- Mandamus -- Charter -- Collateral Attack. A charter having been framed by a city containing a population of more than 2,000 inhabitants, for its own government, by freeholders elected for such purpose, and the same having been submitted to the qualified voters thereof for adoption, and returns of such election having been made and the charter submitted to the Governor for his approval, and the Governor having approved the same, the invalidity of such charter on the alleged failure to comply with some of the requirements of sections 3a and 3b of article 18 of the Constitution cannot be raised in a mandamus proceeding brought by one of the officers holding prima facie evidence of title from a municipal election held pursuant to the powers of such charter, against one of the officers holding under the old charter to recover the belongings of such office.

(a) In a mandamus proceeding, brought by an officer elected at a municipal election held under the powers of such charter to require the turning over to him the belongings of such office by an officer claiming to hold by virtue of his election under the old charter, said relator in the mandamus proceeding holding a certificate of election by virtue of a municipal election held under the powers of such charter, the respondent will not be permitted to contest the title or the right of the relator to such office on the alleged ground of the invalidity of such municipal election on account of the failure to hold a primary election pursuant to the primary election laws passed by the Legislature to govern municipalities, or other irregularity in holding such election.

Error from District Court, Logan County; A. H. Huston, Judge.

Action by N. M. Carter against W. H. Mitchell. Judgment for plaintiff, and defendant brings error. Affirmed.

Hayes and Kane, JJ., dissenting.

James Hepburn, W. H. Chappell, and Devereux & Hildreth, for plaintiff in error.

Burford & Burford and Dale, Bierer & Hegler, for defendant in error.

WILLIAMS, J.

¶1 Plaintiff in error seeks in this proceeding to have determined (1) the legality of the election for the adoption of the charter of the city of Guthrie, and (2) the validity of the election held by virtue of the terms of said charter for the election of municipal officers. It is contended by the defendant in error that the validity of the charter can only be brought in question by a direct action instituted by the state. The charter in question was framed by virtue of the powers granted by sections 3a and 3b of article 18 of the Constitution.

1. Can the plaintiff in error in a mandamus proceeding brought by a person elected to an office created by the charter, said election having been held under the powers granted by said charter, in such proceeding question the validity of the adoption of such charter or the validity of the election at which such officer was elected?

¶2 In Ewing v. Turner, 2 Okla. 94, 35, 35 P. 951 P. 951, it was held that, as a general rule, in an action for mandamus, where the relator shows a prima facie title to a public office, he is entitled to the aid of mandamus to obtain possession of the books, records, insignia, paraphernalia, and official belongings of such office, and in granting the writ the court will not go behind such showing and try the title thereto. In Ewing v. Turner, supra, it is said:

"It is further contended by the relator that Gov. Renfrow had exercised power in his removal without authority of law, and that incidentally this question can be inquired into by the court to determine if the commission issued to Carruthers is void, and, if so, a void commission could in no manner affect the title of said relator. This will not do, for the court, in mandamus, will not go behind the certificate or commission. When the relator seeks to go behind the commission of Carruthers and have it declared void, necessarily he puts in issue the title to the office. From this there is no escape. In the nature of things it must be so, and upon this rock he must founder, and here his case must fail."

¶3 In Cameron v. Parker, 2 Okla. 277, 38 P. 14, the case of Ewing v. Turner, 2 Okla. 94, 35 P. 951, was re-examined and adhered to.

¶4 In Matney v. King, 20 Okla. at page 42, 93 P. at page 745, the case of Cameron v. Parker, supra, is cited, wherein the following excerpt is quoted:

"In an elective office the law requires that the credentials of the person declared duly elected shall be a certificate of election, or in an appointive one, as in the case at bar, a commission from the Governor. This is the highest evidence of title the law requires, and it is not for an individual to assert the invalidity of the law authorizing it, the want of authority for its issuance, or the legal exercise of the power conferring it. These are questions for the courts to determine. But in the meantime the person holding the commission or certificate of election, legal upon its face, evidencing the absolute prima facie title to the office, is entitled to the possession of the books, records, and official belongings thereto, notwithstanding the actual title may be in controversy at the time, and in the same or another tribunal."

¶5 In the same opinion this court said:

"Thus in Rex v. Bankes, 3 Burr 1452, Lord Mansfield proposed, upon the argument, that affidavits be laid before him that he might determine whether it was a doubtful election and fit to be tried upon an information in the nature of a quo warranto, or whether it was merely colorable, and clearly void; saying that in the former case the court might not grant a mandamus, while in the latter case they ought. This case falling fully within the rule sanctioned by the common law, and well supported by decisions of courts of last resort, both state and federal, this court, having all the facts before it, should render effective relief. This proceeding does not in any way affect the title to the office; but the person having prima facie title to it is entitled to recognition as clerk of the district court by the respondent as judge of the court until his title is upset by a proper proceeding."

¶6 In Matney v. King, supra, Toney Matney held a certificate of election issued by the regular county clerk, whilst Carroll S. Bucher held one issued by Frank R. Applegate. This court in that case determined who was the proper officer to issue said certificate, and, having reached the conclusion that Porter Spaulding was the proper county clerk to issue the certificate, held the certificate issued by such clerk to be prima facie evidence of Matney's title to the office.

¶7 In this case it is conceded that the person acting as Governor, who approved this charter, was the proper officer to approve it. A board of freeholders was elected and a charter framed and adopted under the powers granted by sections 3a and 3b of article 18 of the Constitution. Such charter was submitted to the Governor and approved by him. Then the election for municipal officers was held pursuant to the terms of said charter. There being a valid law under which the charter was framed, as to whether it was complied with, the Governor having approved the charter, we do not think that in this collateral proceeding such question can be raised.

¶8 In Higbee v. Aetna Bldg. & Loan Ass'n, 26 Okla. 327, 109 P. 236, it was held that:

"The due incorporation of any company claiming in good faith to be a corporation under the laws of this state and doing business as such, or its right to exercise corporate powers, cannot be inquired into collaterally in any private suit to which such de facto corporation may be a party. (a) Such inquiry may be had in an action brought in a direct proceeding for such purpose."

" Wherever there is a valid law under which a corporation with the powers assumed might have been lawfully incorporated, and there is an attempt, apparently in good faith, to comply with the requirements of such law, and the corporation thus attempted to be created is organized and enters upon the transaction of business, its existence as a de facto corporation is established, even though it has failed to comply with the law in some particular which prevents it from being a corporation de jure."

¶9 Gilkey v. How, 105 Wis. 41, 81 N.W. 120, 49 L. R. A. 483; Stout v. Zulick, 48 N.J.L. 599, 7 A. 362; Methodist Episcopal Union Church v. Pickett, 19 N.Y. 482; Bank of Toledo v. International Bank, 21 N.Y. 542; Lancaster v. Amsterdam Improv. Co., 140 N.Y. 576, 35 N.E. 964, 24 L. R. A. 322; Larned v. Beal, 65 N.H. 184, 23 A. 149; Society Perun v. Cleveland, 43 Ohio St. 481, 3 N.E. 357; Spring Valley Waterworks v. San Francisco, 22 Cal. 434; Haas v. Bank of Commerce, 41 Neb. 754, 60, 60 N.W. 85 N.W. 85; American Salt Co. v. Heidenheimer, 80 Tex. 344, 15 S.W. 1038, 26 Am. St. Rep. 743; McTighe v. Macon Constr. Co., 94 Ga. 306, 21 S.E. 701, 32 L. R. A. 208, 47 Am. St. Rep. 153.

¶10 Where there is no law authorizing such corporation de jure, there can be no corporation de facto. Evenson v. Ellingson, 67 Wis. 634, 31 N.W. 342; Schriber v. Langlade, 66 Wis. 616, 29 N.W. 547, 554; McTighe v. Macon Const. Co., 94 Ga. 306, 21 S.E. 701, 32 L. R. A. 208, 47 Am. St. Rep. 163; Western Union Tel Co. v. Mexican Agricultural Land Co., ante, 122 P. 505.

¶11 It is well settled that the corporate existence of a corporation de facto cannot be inquired into collaterally, but may be inquired into by direct proceeding. Stout v. Zulick, 48 N.J.L. 599, 7 A. 362.

¶12 The right of a de facto corporation to act or the validity of its acts cannot be questioned except in proceeding in quo warranto, or a direct proceeding. Continental Trust Co. v. Toledo R. R. (C. C.) 82 F. 642; Miller v. Irrigation Dist. (C. C.) 85 F. 693; Miller v. Irrigation Dist. (C. C.) 92 F. 263; Miller v. Irrigation Dist. (C. C.) 99 F....