State, by Hagglund, ex rel. Security Savings & Trust Co. v. School Dist. No. 9 of Tillamook County

• Decision Date: 24 April 1934
• Parties: STATE, by HAGGLUND, Dist. Atty., ex rel. SECURITY SAVINGS & TRUST CO. et al. v. SCHOOL DIST. NO. 9 OF TILLAMOOK COUNTY et al.
• Court: Oregon Supreme Court

31 P.2d 751

148 Or. 273

STATE, by HAGGLUND, Dist. Atty., ex rel. SECURITY SAVINGS & TRUST CO. et al. v. SCHOOL DIST. NO. 9 OF TILLAMOOK COUNTY et al.

Supreme Court of Oregon

April 24, 1934

In Banc.

Appeal from Circuit Court, Tillamook County; George R. Bagley Judge.

Quo warranto action by the State, by A. E. Hagglund, as District Attorney for Tillamook County, on the relation of the Security Savings & Trust Company, as trustee for the heirs of Warren E. McCord, deceased, and others, against School District No. 9 of Tillamook County and others. From an adverse decree, relators appeal. On motion to dismiss the appeal.

Motion overruled.

Botts & Ebinger, Geo. P. Winslow, and E. J Claussen, all of Tillamook, and Oscar Hayter, of Dallas, for the motion.

McCamant Thompson & King, of Portland, opposed.

RAND Chief Justice.

This is a motion by respondents to dismiss the appeal. The action in which the judgment appealed from was taken is a quo warranto action that was brought in the name of the state on the relation of certain landowners to have school district No. 9 in Tillamook county declared to be illegal and void in so far as the boundaries of the district include the lands of the relators. The action was commenced by the filing of a complaint signed by the district attorney in his official capacity. After its commencement, the district attorney objected to any further prosecution of the action and moved to dismiss the proceeding. That motion was denied and the cause was then tried before the Honorable George R. Bagley circuit judge, who entered a decree holding that the inclusion of the relators' lands within the boundaries of the district was illegal and void, but that the relief prayed for could not be granted for the reason that the action was barred by the statute of limitations. From this decree the relators appealed, but the district attorney refused to sign the notice of appeal or to authorize the same to be taken, and his failure to so act constitutes the sole ground for the motion.

The common-law writ of quo warranto and the proceedings by information in the nature of quo warranto have been abolished in this state by statute, but the same common-law remedies, except as changed by the statute, may now be had in an action at law brought pursuant to the provisions of chapter 6, title 5, of the Code (section 5-601 et seq.) which provides the procedure to be followed in the action. Under the express provisions of that chapter, all actions brought thereunder must be maintained in the name of the state and shall be commenced and prosecuted by the prosecuting attorney of the district where the same are triable. An examination of these statutes will show that there are two general classes of quo warranto actions provided by the Code. The first class embraces those cases in which the interest is public and the private interest, if any, is only incidental to the main relief sought in the action. The second class embraces those cases in which there is both a public and a private interest. The first class of cases includes actions to set aside a corporate organization, whether public or private, where it was procured by some fraudulent suggestion or concealment of a material fact by the persons incorporated or with their knowledge and consent, and can be brought only by order of the Governor (section 5-602, Oregon Code 1930); actions to annul a private corporate charter or the existence of such corporation which can be brought only by leave of the court (section 5-603); and actions to vacate or annul letters patent issued by the state (section 5-605).

In all actions embraced within the first class, the whole purpose of the action is to protect the public from an invasion of its rights by the defendant. In that class of cases the only rights and interests sought to be enforced are public in their nature and pertain to the public as a whole and not to any individual member of the public. From this it naturally follows that the action in cases of that kind is a state action and must be commenced on the information of the district attorney who is the law officer of the state.

As was said in State v. Douglas County Road Co., 10 Or. 198, by Mr. Justice Waldo speaking for the court:

"Therefore, when, as in the case before us, the district attorney files a quo warranto information in a distinctly state action, he has as much the sole control over it as the attorney general would have in a like case at common law. A relator cannot be a party to the proceeding-is a mere stranger-and if his name is put in the information, it is surplus-age."

Under that decision, and it is the unquestioned law of this state, in quo warranto informations filed by the district attorney in cases of the first class, that is to say under sections 5-602, 5-603, and 5-605 of our Code, the district attorney has the sole control over their prosecution, both in the circuit court and upon an appeal to this court, and there can be no appeal in a case of that kind unless taken by the district attorney or by his duly authorized deputy, or under their direction.

In cases of the class to which we are now referring, the state is the real party in interest and must act, if at all, through its law officer who, under our statute, is the district attorney of the district where the action is triable. Hence, in all such cases, except where the district attorney acts on the direction of the Governor or by leave of the court, the question of whether the action shall be commenced or be prosecuted to a final determination is a matter solely within the discretion of the district attorney.

This action, however, is not of that class. It was brought under section 5-604, Oregon Code 1930, on the relation of private parties who were seeking to enforce a...