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

• Decision Date: 02 October 1934
• Citation: 148 Or. 273,36 P.2d 179
• 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

36 P.2d 179

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

October 2, 1934

In Banc.

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

Proceeding in quo warranto 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 to test the validity of the orders of the District Boundary Board of Tillamook County purporting to add a large body of relator's land to School District No. 9 in such county. From a judgment of dismissal, relators appeal.

Affirmed.

W. Lair Thompson, of Portland (McCamant, Thompson &amp King, of Portland, on the brief), for appellants.

H T Botts, of Tillamook, and Oscar Hayter, of Dallas (Botts & Ebinger, George P. Winslow, and E. J. Claussen, all of Tillamook, on the brief), for respondents.

KELLY Justice.

As stated by Mr. Chief Justice Rand, in overruling defendants' motion to dismiss relators' appeal, 31 P.2d 751, this proceeding is based upon section 5-604, Oregon Code 1930. Among other things, that section provides that an action at law may be maintained in the name of the state upon the information of the prosecuting attorney or upon the relation of a private party against the person offending when any person shall unlawfully hold or exercise any franchise within this state.

Relators contend that the exercise of control by defendants over certain portions of relators' lands for school purposes by levying taxes thereon for such purposes is unlawful. Defendants seek to justify by reason of certain orders of the district boundary board of Tillamook county whereby said portions of relators' lands were added to and included within the limits of said defendant, school district No. 9 of said county.

Defendants also defensively pleaded the statute of limitations, laches, acquiescence, and estoppel.

Relators urge that the orders of said district boundary board are invalid because in contravention of the statute requiring the county to be divided into convenient subdivisions to be known as school districts (sections 35-601 and 35-901, Oregon Code 1930), and requiring all school districts to be formed of contiguous territory (section 35-905, Oregon Code 1930). Relators insist that in respect to their lands, in said school district, said district is not a convenient subdivision, that their property is not contiguous to the other portion of said district, and that the addition to said school district of their lands was made only for the purpose of increasing the amount of taxes to be collected by said school district.

The major portion of relators' lands now in said school district No. 9 was added thereto by an order made March 8, 1912.

On April 5, 1912, a comparatively small portion included in the area of relators' lands added the month before was excluded from school district No. 9, and a different portion from any theretofore included, which was also comparatively small, was added thereto. By this order of April 5, 1912, a strip approximately 10 rods wide was taken from school district No. 1 and added to school district No. 9. This strip comprises the connection between district No. 9 as originally formed and relators' lands.

On September 10, 1921, an order again was made excluding a small portion and including a different portion of relators' lands. On April 14, 1922, an order was made adding a comparatively small portion of relators' lands to said district. On September 28, 1931, approximately nine-sixteenths of a section of relators' lands, not theretofore included, were added to said school district. We avoid the prolixity of attempted greater exactitude and more specific description, because we think that, inasmuch as the strip connecting relators' lands with the remaining part of said school district remained the same, and the general form, location, and condition of relators' lands in said district were unchanged, the same questions as to contiguity and convenience with respect to relators' lands attend and appear upon each of the orders above mentioned. In saying this, we are not unmindful, that, upon the advent of the railroad in 1911, most of the people who had lived in the vicinity of relators' lands and upon them in said district moved away, leaving but a very few children, not more than half a dozen of school age, in that part of said district.

Since 1912, up to and including the year 1931, relators have paid the taxes on their lands in said school district No. 9, including the special taxes levied in said school district.

Upon the question of statute of limitations, defendants argue that the amendment of 1903, which changed the statute of 1862, merely restored the rule of the common law. The statute of 1862 subjected actions by the state to the bar of the statute of limitations. Our present statute, which comprises the amendment of 1903, is as follows: "The limitation prescribed in this title shall not apply to actions brought in the name of the state, or any county, or other public corporation therein, or for its benefit, but causes of action that have heretofore become barred by virtue of any statutory provision are not intended to be revived hereby." Section 1-211, Oregon Code 1930.

We think that the amendment above quoted went further than merely to reinstate the common-law rule. It plainly exempts from the statute actions brought in the name of the state, to which class the case at bar belongs.

Relators urge that the defense of laches and acquiescence are available in suits of equity only, and that, inasmuch as the instant case is an action at law, those defenses cannot be interposed herein.

The writ of quo warranto is an ancient common-law writ and remedy. The history of its origin is obscured in antiquity. It first appeared upon the English statute books in the statute 6 Edw. 1, known as the Statute of Gloucester. Quo warranto had its origin in the theory that all special privileges (franchises) which are conferred upon an individual or corporation and do not belong to the citizens of the county generally as a matter of common right are the gift or grant of the king.

When, therefore, it was claimed that such special privilege had been usurped without gift or grant thereof from the sovereign, or where the privilege so conferred was alleged to have been abused, or the conditions thereof had not been observed, a writ was issued at the suit of the crown requiring the party charged with the usurpation to appear and show by what warrant or authority he assumed to exercise the privilege thus challenged. It issued from a court of chancery. 51 C.J. 309-310, subject, Quo Warranto, §§ 2 and 3, and notes. Issuing from a court of chancery and commanding a return of a nature foreign to the writs of the courts of law, it follows that by the common law quo warranto was an authorized process for the assertion of a remedy in its nature equitable; namely, the disclosure by defendant of the claim under which he exercises the franchise in question.

The statute of Oregon gives a remedy in lieu of the common-law writ of quo warranto, and calls that remedy an action at law. It is in truth merely a statutory proceeding for the exercise of the equitable right to compel disclosure as above mentioned, as well as to determine whether the franchise in question is being legally exercised.

In 1912, this court decided the case of State ex rel. v. Port of Tillamook, 62 Or. 332, 334, 124 P. 637, 641, Ann. Cas. 1914C, 483, in which Mr. Justice Bean, speaking for the court, said: "It is seldom that laches are imputed to a state in a quo warranto action to test the legality of an incorporation where the rights of the public are involved."

The interval which had elapsed in that case was less than two years. Moreover, the language used by the learned and experienced jurist clearly implies that there are cases though infrequently arising, where the state has been precluded by laches from maintaining quo warranto proceedings. State v. Town of Mansfield, 99 Mo.App. 146, 72 S.W. 471; State v. Bailey, 19 Ind. 452; State v. Lathrop...