State ex rel. Childs v. Board of County Commissioners of Crow Wing County

• Decision Date: 22 January 1897
• Docket Number: 10,217--(41,[2] 13 [3] )
• Citation: 69 N.W. 925,66 Minn. 519
• Parties: STATE OF MINNESOTA ex rel. H. W. CHILDS, Attorney General, v. BOARD OF COUNTY COMMISSIONERS OF CROW WING COUNTY and Others
• Court: Minnesota Supreme Court

69 N.W. 925

66 Minn. 519

STATE OF MINNESOTA ex rel. H. W. CHILDS, Attorney General, v. BOARD OF COUNTY COMMISSIONERS OF CROW WING COUNTY and Others

Nos. 10,217--(41, ^[2] 13 ^[3] )

Supreme Court of Minnesota

January 22, 1897

January 22, 1897, Decided

66 Minn. 519 at 526.

Original Opinion of October 20, 1896, Reported at: 66 Minn. 519.

H. W Childs and M. R. Tyler, for relator.

Wilson & Van Derlip, for respondents.

The commission created by Laws 1895, c. 298, is an independent tribunal and its action is final. Its action is neither judicial nor quasi judicial. State v. Clough, 64 Minn. 378, 67 N.W. 202. See Currie v. Paulson, 43 Minn. 411, 45 N.W. 854; Attorney General v. Page, 38 Mich. 286; Attorney General v. Supervisors, 33 Mich 289; State v. Peterson, 50 Minn. 239, 52 N.W. 655; State v. Dart, 57 Minn. 261, 59 N.W. 190.

OPINION

CANTY, J.

After the filing of the foregoing opinion, the relator presented a motion for an order appointing a referee to take testimony on the questions of fact put in issue by the pleadings and to fix a time for hearing by the court upon said issues not theretofore disposed of by the court. The motion was made on the writ and answer and on all the files and papers in the case.

January 22, 1897, the following opinion was filed:

CANTY J. One opinion has already been handed down in this case at this term. The relator now moves for the appointment of a referee to take and report the testimony to prove those allegations in the writ put in issue by the answer. Respondents have raised some additional questions on the motion, and both parties have filed additional briefs.

1. It is contended by respondents that an information in the nature of quo warranto will not lie to try the question whether or not the county officers of Crow Wing county are wrongfully and unlawfully exercising jurisdiction over a portion of the adjoining county of Cass, or to try the question whether or not such alleged portion of Cass county has or has not become a part of Crow Wing county.

Respondents cite the following cases, which hold that this remedy will not lie to prevent a public officer from exercising jurisdiction beyond the territorial limits within which he may rightfully exercise the same. People v Whitcomb, 55 Ill. 172; Stultz v. State, 65 Ind. 492. In the latter case the court places its decision on the ground that the Indiana Code does not authorize an information in the nature of quo warranto in such a case, but the former case is approved. See, also, High, Extr. Rem. § 618. These authorities hold that injunction, brought by a person specially interested or affected, is the proper and only remedy in such a case. See, also, City of Peru v. Bearss, 55 Ind. 576, which so holds.

The theory of these cases seems to be that the mere de facto annexation of territory to a municipal corporation or quasi corporation is always absolutely void as to every one, and can always be attacked collaterally in any action or proceeding in which the question of the status of the territory may be material. We cannot subscribe to that doctrine. It may be that, immediately or shortly after the attempted annexation of the territory, a person specially affected thereby would be allowed to attack such alleged annexation collaterally, and enjoin the officers of the municipality to which it was claimed to have been annexed from exercising jurisdiction over it. As to that we express no opinion. But after such attempted annexation has been confirmed by user, taxes have been levied, expenses incurred, and other rights and liabilities have been created, we are clearly of the opinion that a de facto annexation may exist, which can only be questioned by the proper state authority in a direct proceeding for that purpose.

In the case of State v. Honerud, supra, p. 32, 68 N.W. 323, an attempt was made to question the validity of the annexation of a certain tier of townships to Otter Tail county, after the lapse of 25 years. If we had found that these townships had never been legally annexed to Otter Tail county, and had allowed Honerud to raise that question in that proceeding (an application for a real-estate tax judgment), what would be the consequence? All uncollected taxes levied in those townships would be held to be illegally assessed. Every sheriff who ever levied a writ of execution or attachment in those townships would be held to be a trespasser. Every county officer who ever took part in the appropriation or expenditure of county funds in those townships would be liable to the county for the same. Every foreclosure sale made by the sheriff pursuant to the statute, and the power of sale contained in every mortgage of lands in those townships, would probably be held void, because made by the sheriff of the wrong county. The accused in every criminal prosecution could question the competency of the grand and petit jurors residing in those townships. If such a juror refused to obey the summons and attend court, the judge would first have to try the question of the legality of the annexation of those towns to the county before proceeding to punish the juror for contempt. There is no end to the questions that would arise if every one were allowed to attack such annexation collaterally every time it would be for his interest to do so, and holding such annexation void on such a collateral attack would result in local anarchy and confusion. Most surely, the well-settled principles of the law will not tolerate any such results, and, as was said in the Honerud case:

"Considerations of sound public policy forbid it, and suggest that the question ought to be considered as a public one, to be raised only by the state itself by quo warranto or other direct proceeding. To permit private individuals to raise the question in collateral proceedings would manifestly result in serious consequences to public and private interests."

It is well settled in this court that an information in the nature of quo warranto will lie directly against the municipal corporation itself, to test the legality of its incorporation, and dissolve it if it is found to be illegally incorporated. State v. Tracy, 48 Minn. 497, 51 N.W. 613; State v. Minnetonka Village, 57 Minn. 526, 59 N.W. 972; State v. Village of Fridley Park, 61 Minn. 146, 63 N.W. 613. The question of the legal existence of a de facto municipal corporation cannot be raised in a collateral proceeding. Cooley, Const. Lim. (6th Ed.) 309; 1 Dillon, Mun. Corp. (4th Ed.) § 43a; Board of Commrs. v. Shields, 62 Mo. 247; Town of Geneva v. Cole, 61 Ill. 397; Coe v. Gregory, 53 Mich. 19, 18 N.W. 541; Rumsey v. People, 19 N.Y. 41.

If an information in the nature of quo warranto is the proper remedy for ousting or dissolving a municipal corporation in toto, we see no reason in principle why it will not lie to oust such a corporation from specific territory over which it is wrongfully exercising jurisdiction, or to dissolve it so far as it covers that territory. The mistake of some of the courts seems to be in assuming that, as to such territory the corporation may and should in all cases be wiped out as if it had never existed, which is the necessary effect of...