State ex rel. Johnson v. Consumers Public Power Dist.

• Decision Date: 07 August 1942
• Docket Number: 31433.
• Citation: 5 N.W.2d 202,142 Neb. 114
• Parties: STATE ex rel. JOHNSON, Atty. Gen., v. CONSUMERS PUBLIC POWER DIST. (City of Sidney et al., Interveners).
• Court: Nebraska Supreme Court

5 N.W.2d 202

142 Neb. 114

STATE ex rel. JOHNSON, Atty. Gen., v. CONSUMERS PUBLIC POWER DIST. (City of Sidney et al., Interveners).

No. 31433.

Supreme Court of Nebraska

August 7, 1942

Syllabus by the Court.

1. A proceeding in quo warranto is a civil action, as defined by our Civil Code, and is governed by the provisions thereof.

2. The forms of pleading in civil actions in courts of record and the rules by which their sufficiency may be determined are those prescribed by our Civil Code.

3. Our Civil Code as a statute complete in all its parts, should be so construed as to make all of its parts harmonize with each other and render them consistent with its general scope and object.

4. "That which is implied in a statute is as much a part of it as that which is expressed." 59 C.J. 973.

5. Under the terms of our Civil Code, issues of law or of fact in quo warranto are required to be joined by the respondent by filing an appropriate demurrer or an appropriate answer to the information filed against him.

CARTER, J., dissenting.

Walter R. Johnson, Atty. Gen., and Edwin Vail, Asst Atty. Gen., for relator.

Lee &amp Sheldahl, of Lincoln, for respondent.

P. J. Heaton of Sidney, L. J. TePoel, of Omaha, Bern R. Coulter and Robert J. Bulger, both of Bridgeport, Edwin D. Crites, of Chadron, and Morrow & Miller, of Scottsbluff, for interveners.

Flansburg & Flansburg, of Lincoln, amicus curiae.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

EBERLY Justice.

This original proceeding in quo warranto was instituted by the attorney general of the state of Nebraska in conformity with the direction of the Chief Executive, to "determine by what warrant" the "Consumers Public Power District," respondent herein, "exercises possession, ownership and control of all the singular and any part or portion of the interconnected and integrated electric system known as the Western Division of the Western Public Service Company," and as described in the amended information filed herein "and any part or portion thereof, located within the boundaries of any individual city or town;" and to require said respondent "to cease and desist from exercising any ownership of, or control over, said properties, or any part thereof; and be excluded from the exercise of any pretended rights, franchises, or privileges with respect thereto."

The cities of Sidney, Chadron, Scottsbluff, and Bridgeport, Nebraska, each, upon leave of this court first obtained, filed its separate petition in intervention in this cause, claiming an interest in the matter in litigation in this proceeding and in the success of the plaintiff herein, and each joining with the plaintiff in claiming for each of such municipalities what was sought in the amended information in quo warranto filed in this cause.

To this amended information of the attorney general the Consumers Public Power District filed its motion "to abate and dismiss the amended information heretofore filed in this cause against it for the reasons and upon the grounds", set forth in such motion. A similar motion was presented by the respondent as to the separate petitions of intervention of the city of Chadron, the city of Bridgeport, the city of Sidney, and the city of Scottsbluff.

The first issue presented by the briefs of the parties is a question of procedure, "whether or not a motion to dismiss, such as that filed by respondent, is a proper procedure."

Original jurisdiction in quo warranto is vested in this court by section 2, art. V of the Constitution, in the following words: "*** The supreme court shall have jurisdiction in all cases relating to *** quo warranto ***, and such appellate jurisdiction as may be provided by law. ***" Sections 20-21,112 to 20-21,139, inclusive, Comp.St.1929, constitute the only statutory provisions applicable to the subject of quo warranto. Of these, sections 20-21,112, 20-21,115, 20-21,116, 20-21,117, Comp.St.1929, relate to the question before us. The first section of the statutes last referred to prescribes who the defendants to the action may be. Section 20-21,115 directs that "such information (in quo warranto) shall consist of a plain statement of the facts which constitute the grounds of the proceeding, addressed to the court, which shall stand for an original petition." Section 20-21,116 provides that "Such statement (which shall 'stand for an original petition') shall be filed in the clerk's office, and summons issued and served in the same manner as hereinbefore provided for the commencement of actions in the district court." Section 20-21,117 provides: "The defendant shall appear and answer such information in the usual way, and issue being joined it shall be tried in the ordinary manner." The provisions quoted were originally enacted in 1866 as title XXIII of the Code of Civil Procedure. In this connection, section 20-802, Comp.St.1929, reads as follows: "The rules of pleading formerly existing in civil actions are abolished and hereafter the forms of pleading in civil actions in courts of record, and the rules by which their sufficiency may be determined, are those prescribed by this code."

Quo warranto is a civil action both in substance and in form. State v. Standard Oil Co., 61 Neb. 28, 84 N.W. 413, 87 Am.St.Rep. 449.

The conclusion follows that the rule of construction prescribed by the code provision last cited is applicable to the instant case.

Again, we are here occupied with ascertaining the proper construction of certain Civil Code provisions. The proper rule being that the meaning of a section of statute must be determined from the entire scope and purpose of legislation and that the statute should be given effect as a whole. Jones v. York County, 8 Cir., 26 F.2d 623. In construing provisions of our Civil Code effect must be given to every word, clause or sentence therein. In other words, our Civil Code as a statute complete in all its parts should be so construed as to make all of its parts harmonize with each other and render them consistent with its general scope and object. State v. Bartley, 39 Neb. 353, 58 N.W. 172, 23 L.R.A. 67; State v. City of Lincoln, 101 Neb. 57, 162 N.W. 138.

Recurring to the provisions of the statute quoted relating to quo warranto we note that when summons is "issued and served in the same manner as hereinbefore provided for the commencement of actions in the district court," the statutory requirement is that the defendant shall appear and answer such information in the usual way. We take it that the requirement is that the defendant shall "answer" in the usual way as contemplated by the provisions of the Civil Code.

The employment in section 20-21,116, Comp.St.1929, quoted, of the words "as hereinbefore provided for the commencement of actions in the district court," clearly designates section 20-503, Comp.St.1929. "That which is implied in a statute is as much a part of it as that which is expressed." 59 C.J. 973.

The effect of the language above quoted is to incorporate as part of the summons to be issued in quo warranto actions the requirements of section 20-503 to the effect that "The summons shall be dated the day it is issued. It shall be directed to the sheriff of the county, and command him to notify the defendant or defendants named therein that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name at the time stated therein," etc. (Italics ours.) The definition of the term "answer" and the requirements as to pleadings exacted thereby as the same is employed in this "summons" the issuance of which is required as a commencement of all civil actions (sec. 20-501) including quo warranto, is determined by section 20-803, which provides: "The only pleadings allowed are *** The answer or demurrer by the defendant ***." It also follows that complete compliance with section 20-21,117 has been had when, after being served with summons, the defendant appears and files his answer or demurrer to the pleading of plaintiff. Either properly constitutes an "answer [to] such information in the usual way."

It appears that the practice in quo warranto actions generally conforms to the conclusion here arrived at. "A quo warranto information is subject to demurrer the same as a declaration, petition, or complaint in a civil action. Thus, the information may be demurred to for failure to set forth sufficient facts, and any defect in the structure of the information may be taken advantage of by demurrer. While a complaint or information met by a demurrer is to be construed against the pleader, yet all facts well pleaded are, in accord with demurrers in other cases, admitted. Pleadings subsequent to the information may likewise be met with demurrer, as for example, a plea or replication." 22 Standard Ency. of Procedure, 79.

"The sufficiency of an information in the nature of quo warranto, or of a plea thereto traversing usurpation and justifying, or of a replication, may be raised by demurrer. In accordance with the general rule governing demurrers the truths of the allegations in the plea are conceded by a demurrer. A demurrer, however, admits only such facts as are well pleaded. It does not admit conclusions of law stated by the pleader, or the construction placed by him upon statutes." 22 R.C.L. 712, sec. 39.

"The legal sufficiency of a pleading, such as a petition, complaint, information, or plea in a quo warranto action or proceeding may be questioned by demurrer; but a pleading cannot be adjudged insufficient in point of law upon a motion to quash or dismiss, or at least such a motion will not be sustained where it is based upon a defect which may be cured or remedied by amendment." 51 C.J. 352.

The conclusions from the...