State ex rel. Anderson v. Port of Tillamook

• Decision Date: 18 June 1912
• Citation: 124 P. 637,62 Or. 332
• Parties: STATE ex rel. ANDERSON et al. v. PORT OF TILLAMOOK et al.
• Court: Oregon Supreme Court

124 P. 637

62 Or. 332

STATE ex rel. ANDERSON et al. v. PORT OF TILLAMOOK et al.

Supreme Court of Oregon

June 18, 1912

Appeal from Circuit Court, Tillamook County; H.L. Benson, Judge.

Action by the State, in the nature of quo warranto, on the relation of S.V. Anderson and others, against the Port of Tillamook H.T. Botts, and others. From a judgment for defendants plaintiffs appeal. Reversed.

This is an action in the nature of quo warranto, brought by the state upon the relation of S.V. Anderson and Lillian Anderson against H.T. Botts, A.G. Beals, D. Fitzpatrick, James Walton Jr., M.F. Leach, and the Port of Tillamook, to determine the right of the defendants to act as a municipal corporation. From a judgment in favor of defendants, plaintiff appeals. The complaint is signed by the district attorney of the proper district. It alleges that the defendants are unlawfully exercising a public office and franchise within the state of Oregon, as officers of the Port of Tillamook without the same being duly incorporated; that the alleged port is a quasi municipal corporation, attempted to be formed under the act of 1909 (Laws of Oregon 1909, pp. 78-88); that the relators are residents and taxpayers within the territory of the pretended port; and that the defendants, as officers of such corporation, are attempting to issue a large amount of bonds and render the relators liable for the payment of a part thereof. The complaint avers in detail that the corporation and the acts of the defendants are illegal for the following reasons: (1) That the original Port of Tillamook was created by, and organized under, an act of the legislative assembly approved February 21, 1899 (Laws of Oregon 1899, pp. 419-423), and has ever since existed as a quasi municipal corporation; that it embraced all of the corporate limits of the city of Tillamook, and 50 feet on each bank of Hoquarton Slough from the east boundary of the city westward to and including Dry Stocking Bar; that the attempt to reincorporate the Port of Tillamook is void, because the proceedings therefor under the provisions of chapter 39, Laws of 1909 (sections 6114 et seq. L.O.L.), by petition to the county court, and by an election held pursuant thereto, embraced the same territory as that included in the former port, together with a large additional area; (2) that no notice of the election for the incorporation of the present Port of Tillamook was published as required by law. The defendants, in their answer, set up the proceedings under the act of 1909 for the organization of the port, and denied the other allegations of the complaint. The reply put in issue the new matter contained in the answer. Upon the trial of the cause in the circuit court it was agreed that the burden of proof was upon the defendants, who introduced evidence, but produced none showing that notices of the election had been issued or posted. Plaintiff alleges that because of a failure to give notice of the special election a large number of legal voters, who were opposed to such proceedings, were prevented from voting, and that the result was thereby changed.

Ralph R. Duniway, of Portland (J.H. McNary, of Salem, on the brief), for appellants.

H.T. Botts, of Tillamook, for respondents.

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

The principal contentions on the part of plaintiff are (1) that there was no authority of law for organizing or reorganizing the present Port of Tillamook, and at the same time extending the boundaries thereof, so as to include territory outside the limits of the port as created by the act of 1899; (2) that in the attempt to organize or reorganize the Port of Tillamook the defendants did not show that they complied with the statutory requirement as to notices.

It is enacted by section 366, L.O.L., 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, in the following cases: (1) When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or, (2) ***; (3) When any association or number of persons act within this state, as a corporation, without being duly incorporated." By section 363, L. O.L., the writ of quo warranto is abolished. It is, however, only the form that is abrogated by this section. The jurisdiction and power of the courts are not changed. The remedies heretofore obtainable under those forms may be obtained by an action at law. State ex rel. v. Cook, 39 Or. 377, 65 P. 89; State ex rel. Sheridan v. Millis, 119 P. 763. For an elaborate discussion of an action in the nature of quo warranto, and the proceedings therein, see the opinion by Mr. Justice Moore in the recent case of State ex inf. Brown v. Sengstacken, 122 P. 292.

We will take up the questions referred to in their inverse order. In an action partaking of the nature of quo warranto, in the absence of any legislation or controlling consideration to the contrary, the rule that the onus probandi is upon the respondent applies, and the defendants must prove the existence of the corporate franchise which they are alleged to have usurped, and their title to the offices, with the wrongful claim or usurpation of which they are charged. State ex rel. v. Sharp, 27 Minn. 38, 6 N.W. 408; 3 High on Ex. Legal Rem. § 629. We find that in ordinary civil actions the burden rests upon the plaintiff to allege and prove his title to the thing in controversy. In quo warranto proceedings we find the rule reversed, and it rests upon the respondent to show his title to the office or franchise in dispute. If he fails to show complete title, judgment is rendered against him. While in civil actions plaintiff recovers upon his own title in an action in the nature of a quo warranto, the respondent must show that he has a good title as against the government. High on Ex. Legal Rem. (3d Ed.) § 712. Mr. Dillon in his work on Municipal Corporations (volume 4 [5th Ed.] § 1555) says: "In a proceeding by information in the nature of a quo warranto the defendant must either disclaim or justify. If he disclaims, the state is at once entitled to judgment. If he justifies, he must set out his title specifically. It is not enough to allege generally that he was duly elected or appointed to the office. He must plead facts, showing on the face of the plea that he has a valid title to the office. The state is not bound to show anything." In section 1554, Id., we find the following: "The certificate of election of an officer, or his commission, coming from the proper source, is prima facie evidence in favor of the holder; and in every proceeding, except a direct one to try the title of such holder, it is conclusive; but in quo warranto the court will go behind the certificate or commission, and inquire into the validity of the election or appointment, and decide the legal rights of the parties upon full investigation of the facts."

It is a well-settled rule in Oregon that the notices required by statute to be given for a special election constitute a condition precedent which must be observed in order to validate the measures to be voted upon at such election. Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am.St.Rep. 786; Guernsey v. McHaley, 52 Or. 555, 98 P. 158; Wright v. City of McMinnville, 59 Or. 397, 117 P. 298. The purpose of the notices is to inform the legal voters of the time, place, and object of the election. State ex inf. v. Sengstacken, supra.

Considering now the evidence produced by defendants, it appears that a petition, containing the requisite number of signatures, was presented to the county court of Tillamook county, requesting that the question of incorporating the port be submitted to the legal voters; that the county court made an order providing for the holding of a special election therefor, and directing the county clerk to give notice of such election to be held on the 24th day of August, 1909; that at a special session of the court on the 31st day of August, 1909, 248 votes having been cast in favor of incorporating the port and 172 votes against the same, the court made and entered a proclamation declaring the Port of Tillamook to be duly incorporated as a municipal corporation, pursuant to the act of 1909; that thereafter the Governor appointed a board of five commissioners for said port, consisting of the defendants H.T. Botts, A.G. Beals, D. Fitzpatrick, James Walton, Jr., and M.F. Leach, who duly qualified; that the commissioners H.T. Botts and D. Fitzgerald were re-elected at the general election November 8, 1910, their terms having expired; and that they qualified as such commissioners. Their certificates of election and appointment were produced in evidence. As far as the form of the proceedings is concerned we think the defendants made a prima facie case. The statute does not require a record of the posting of such election notices. Subdivision 15, § 799, L. O.L., makes it a disputable presumption that official duty has been regularly performed. Section 797, L. O.L. reads: "A presumption, unless declared by law to be conclusive, may be overcome by other evidence, direct or indirect; but unless so overcome, the jury are bound to find according to the presumption." The defendants show a compliance with the statute up to the time that it was the duty of the clerk to issue and mail notices to the judges and clerks of the election in the different precincts. Then the law steps in with the presumption that this official duty has been regularly performed, which in itself stands as prima...