State ex inf. Brown v. Sengstacken

• Decision Date: 26 March 1912
• Citation: 122 P. 292,61 Or. 455
• Parties: STATE ex inf. BROWN, Pros. Atty., v. SENGSTACKEN et al. [d]
• Court: Oregon Supreme Court

122 P. 292

61 Or. 455

STATE ex inf. BROWN, Pros. Atty., v. SENGSTACKEN et al. ^[d]

Supreme Court of Oregon

March 26, 1912

Appeal from Circuit Court, Coos County; J.S. Coke, Judge.

Action by the State, on the information of George M. Brown, as Prosecuting Attorney, against Henry Sengstacken and others to determine their right to act as a municipal corporation. From a judgment for defendants, relator appeals. Reversed and rendered.

This is an action in the name of the state, upon the information of George M. Brown, the prosecuting attorney of the proper district, against Henry Sengstacken, E. Mingus, W.C. Harris L.J. Simpson, and C.S. Winsor, to determine their rights to act as a corporation. The information details the proceedings undertaken to organize in Coos county the port of Coos Bay sets forth wherein certain requirements of the statute respecting the giving of notice of a special election, were not observed whereby, it is alleged, the attempt to create a municipal corporation was ineffectual, and the defendants are acting as commissioners without authority. The answer and the reply put in issue the material allegations of the pleadings of the respective parties, and, the cause having been tried, findings of fact were made in substance as follows: That a proper petition, particularly describing the boundaries of the territory proposed to be incorporated, was duly filed and presented to the county court of that county, which ordered a special election to be held April 19, 1909, at the several polling places in the 12 precincts comprising the district. That in each of 3 of these precincts a second or additional board, consisting of 3 judges and 3 clerks, were regularly appointed. That, within the time prescribed, the county clerk caused to be printed and mailed to each of the judges and clerks of such precincts two notices of election. That the election was held on the day appointed, and, the returns thereof having been duly made and canvassed, there were found to have been cast 1,234 ballots, of which 992 were polled in favor of the incorporation and 221 against it. That thereupon the county court caused to be entered in its journal the result of the election and an order proclaiming the incorporation of the port of Coos Bay. That of the 180 notices of election required to be posted, there were put up in the several precincts, by the judges and clerks appointed therefor, only 105; that at their request there were posted by third parties 8, by other persons 9. That no evidence was offered as to the putting up of 14. That there was a neglect to post 44. That in the territory comprising the port the total number of electors registered for and the votes cast at several elections were respectively as follows: June 1908, 1,788 and 1,917; November of that year, 2,002 and 1,672; November 1910, 1,761 and 1,873. That of the total vote cast April 19, 1909, 309 ballots were polled by electors who had not been registered. That nine days prior to the election, actual notice thereof was regularly mailed to 1,764 registered voters residing in the district. That in five of the precincts public meetings were held to debate the question of the incorporation, which subject was also discussed in the public press of the district. And that between June, 1908, and April, 1909, there had been in the territory no increase of voters, the approximate number of whom was 1,950 at the time of the special election. Based on these findings, conclusions of law were deduced, in substance as follows: That the notices of election that were posted by persons other than judges and clerks afforded adequate information; that it would be presumed that notices, in respect to posting which no evidence was offered, were regularly put up; that there was no reasonable probability that the failure to post the entire number of notices demanded would have affected the result of the election; that the putting up of every notice specified was not essential to the holding of a valid election; and that each step required to be taken was performed with sufficient regularity to incorporate the port and to authorize the defendants, as regularly selected commissioners, to act for it. Judgment was thereupon rendered, awarding to defendants their costs and disbursements, and the plaintiff appeals.

J.W. Bennett (Geo. M. Brown and L.A. Liljeqvist, on the brief), for appellant.

Cassius R. Peck, for respondents.

MOORE J. (after stating the facts as above).

It is maintained by plaintiff's counsel that testimony was improperly admitted over objection and exception, that the findings of fact do not sustain the conclusions of law, and that errors were committed in these respects. It is insisted by defendants' counsel, however, that the cause having been tried without a jury, evidence was properly received upon which could have been predicated the findings of fact and of law which are sufficient to uphold the judgment and cannot be reviewed upon appeal.

Preliminary to a discussion of the question suggested, reference will be made to clauses of the statute upon which these proceedings are founded. "An action at law may be maintained in the name of the state, upon the information of the prosecuting attorney, *** against the persons offending in the following cases: *** When any association or number of persons act within this state, as a corporation, without being duly incorporated." L.O.L. § 366, subd. 3. This enactment is a part of the chapter of the Code relating to actions to avoid charters, letters patent, and to prevent the usurpation of an office or franchise, and to determine the right thereto. Id. §§ 363-377. "The writ of scire facias, the writ of quo warranto, and proceedings by information in the nature of quo warranto are abolished, and the remedies heretofore obtainable under these forms may be obtained by action at law in the mode prescribed in this chapter." Id. § 363. Though the common-law forms of actions thus referred to have been changed, the right to the relief by actions analogous to those ancient methods remains. State v. Douglas County Road Co., 10 Or. 198; State ex rel. v. Cook, 39 Or. 377, 65 P. 89. In this condition of the law, regulating the practice in quo warranto actions, the chief inquiry is: Could the parties hereto have legally insisted upon a trial by jury, so that waiving the right makes the findings of fact equivalent to special verdicts that cannot be reviewed on appeal, if any competent evidence was offered to sustain the findings?

Our organic law contains the following guaranty: "In all civil cases, the right of trial by jury shall remain inviolate." Const.Or. art. 1, § 17. The fundamental law was amended November 8, 1910, empowering the Supreme Court, in its discretion, to take original jurisdiction in quo warranto proceedings. Id. art. 7, § 2. The right to a trial by jury thus assured applies only to cases in which the prerogative existed at common law, or was secured by statute, or recognized by decision or rule of court, at the time our Constitution was adopted. Tribou v. Strowbridge, 7 Or. 156.

In order to ascertain if in Oregon at that time the right subsisted by the ancient law was granted by territorial enactment, or conceded by judicial settlement, it is necessary to distinguish between a writ of "quo warranto" and proceedings by "information in the nature of quo warranto," and to determine whether at common law a party to a writ of quo warranto was entitled to, and could legally demand a jury trial. The ancient writ of quo warranto was in the nature of a writ of right which could be invoked by the king against a person who claimed or usurped an office, franchise, or liberty, to inquire by what authority he asserted a right thereto, in order that it might be determined. 3 Black.Com. *262; High Ex. Legal Rem. (3d Ed.) § 592. A judgment on a writ of quo warranto, as in the case of other prerogative writs, was conclusive even as against the crown, and the finality of such determination and the length of the process, which was an original writ issuing out of chancery, probably induced the substitution of the more modern method of determining the right invoked by an information in the nature of quo warranto, which was properly a criminal prosecution instituted not only to fine the usurper, but to oust him from an office, franchise, or liberty. 3 Black.Com. *263.

In proceedings in courts of England on informations in the nature of quo warranto, the right to a trial by jury seems to have been granted by enactment. Thus, by an act of 4 & 5 Will. & M. c. 18, stating that whereas informations had been exhibited against persons for "trespasses, batteries and other misdemeanors," declaring that from and after the first day of the Easter term, in the year 1693, the clerk of the crown in the Court of Kings Bench should not, without express order of the court, receive or file "any information for any of the causes aforesaid;" but that if an information were ordered to be filed, issue thereon were joined, and, "a verdict pass for the defendant," he was to be awarded his costs, unless the judge should certify that there was reasonable cause for exhibiting the information. In construing the language of that act it was held that a usurpation of an office or a franchise was a "misdemeanor" within the meaning of the statute. Cole, Crim. Information & Quo Warranto, *117 (56 Law Lib.).

So too, another statute (9 Ann. c. 20), regulating proceedings on information in the nature of quo warranto, proclaimed that from and after the first day of Trinity term (in the year 1711) in case any person should usurp, intrude into, or unlawfully hold any office or franchise, an information by leave of court might be exhibited against him in the nature of quo...