State ex rel. Murdock v. Ryan
| Decision Date | 24 June 1912 |
| Docket Number | 2331 |
| Citation | 125 P. 666,41 Utah 327 |
| Court | Utah Supreme Court |
| Parties | STATE ex rel. MURDOCK v. RYAN et al |
APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.
Quo warranto by the State on the relation of T. J. Murdock against Orson Ryan and others.
Judgment for relator. Defendants appeal.
REVERSED AND REMANDED.
W. S Willis and E. A. Walton for appellants.
J. W. N. Whitecotton for respondent.
The respondent asked and obtained leave from the district court of Wasatch County, Utah, to file an information and bring an action in the nature of quo warranto to test the validity of the organization of what is known as the "Wasatch High School District," in said Wasatch County, and also to test the right of the several appellants to act as the trustees of the said high school district. The information was filed on the 1st day of June, 1910, and the action or proceeding was commenced and prosecuted in the name of the State of Utah on the relation of respondent. Respondent in the information, in substance, alleged that at the time the information was filed he was a citizen, a resident, and taxpayer within Charleston school district No. 4, in Wasatch County, Utah; that on the 8th day of February, 1908, a certain note was posted in five public places within said Charleston school district, giving notice to the electors that an election would be held at a time and place therein specified for the "purpose of voting by ballot for or against the organization of a high school district to be composed of two or more of the following named contiguous school districts within the county of Wasatch." The notice also contained the names of the districts, and stated the hours at which the polls would open and close; that, in pursuance of said notice, a pretended election was held in said Charleston district on the 3d day of March, 1908, a return of which was made, and which showed that a majority of the qualified electors of said district had voted in favor of uniting with the other school districts named for the purpose of organizing a high school district; that the ballots voted at such election were in the following form: "For High School Ye/N;" that no other notice of election was ever given and no other election except as stated ever held; that like notices were posted in each of the other school districts in said Wasatch County, and that a pretended election was held in each one at which similar ballots were cast and returns of said elections were made showing that a majority of the qualified electors in each of said school districts had voted in favor of organizing a high school district in said Wasatch County as aforesaid; that said school districts out of which said high school district was intended to be formed are not contiguous territory, and that there is no such municipal corporation as "Wasatch High School District;" that each of the appellants named, except Orson Ryan, "claims to be a member of the board of trustees of the said alleged Wasatch high school district, and that appellant Orson Ryan claims to be ex-officio president of said alleged board by reason of the fact that he is the county superintendent of schools in said Wasatch County;" that each of said appellants holds said office without any right in law, and that they and each of them "do now usurp unlawfully upon the State of Utah, to the damage of the State of Utah, and against the peace and dignity thereof, and against the form of the statute thereof." It is also alleged in the information that the relator apprised the Attorney-General of the State of Utah of the foregoing facts, "and requested him in his official capacity to institute these proceedings, but to do so the said Attorney-General has refused and still refuses, to the great detriment of the State of Utah, and therefore, and that the wrongs done to the State of Utah in manner and form above set forth may be corrected, this relator institutes these proceedings on behalf of the State." The prayer is as follows:
"Wherefore, plaintiff demands judgment as to the validity of the organization of said Wasatch high school district, and as to the right of the defendants to exercise the office of trustees thereof."
The appellants assailed the right of the respondent to institute and prosecute the proceedings, and also assailed the jurisdiction of the court to permit him to do so, first, by a motion to rescind the leave granted by the court to file the information; second, by a general demurrer for want of facts; and, third, by special demurrer in which they assailed the power and jurisdiction of the court and the legal capacity and right of the respondent to prosecute the proceedings for and on behalf of the state. The motion and demurrers were overruled, and the appellants answered. In view of the conclusions reached by us, it is not deemed necessary to refer either to the defenses set forth in the answer or the findings of the court, except to state that findings were made in favor of the relator, and that judgment was entered in which it was adjudged and decreed "that Wasatch high school district has never been legally" organized, and has never had "and has not now any legal existence." It was further adjudged "that the exercise of the office of trustees of Wasatch high school district by the defendants is a usurpation upon the State of Utah, is wrongful and without any warrant of law," and that the relator recover his costs. We have been thus particular in stating the claims of the relator and the relief granted by the court to show that the rights involved and the relief granted were clearly and entirely of a public, and not of a private nature.
Counsel for appellants contend that for the reasons just stated the court clearly erred in permitting the information to be filed by respondent as a private citizen and taxpayer, and further erred in not sustaining the special and general demurrers to the information, and in entering the judgment and decree as aforesaid.
The proceeding in the nature of quo warranto is regulated by statute in this state. Comp. Laws 1907, section 3609, is as follows:
"A civil action may be brought in the name of the state: (1) Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of the state; (2) against a public officer, civil or military, who does or suffers an act which, by the provisions of law, works a forfeiture of his office; (3) against an association of persons who act as a corporation within this state without being legally incorporated."
Section 3610 in substance, provides that a like action may be brought against a corporation (1) when it has offended against any law under which it was created; (2) when it has forfeited its privileges and franchises; (3) when it has committed or omitted an act amounting to a forfeiture of its franchises; (4) "when it has misused a franchise or privilege conferred upon it by law, or exercised a franchise or privilege not so conferred."
Section 3611 is as follows:
"The Attorney-General, when directed by the Governor, shall commence any such action; and when, upon complaint or otherwise, he has good reason to believe that any case specified in the preceding section can be established by proof, he shall commence an action."
Section 3612 is as follows:
"Such officer may, upon his own relation, bring any such action, or he may, on leave of the court, or a judge thereof in vacation, bring the action upon the relation of another person; and if the action be brought under sub. 1, sec. 3609, he may require security for costs to be given as in other cases."
Section 3613, among other things, provides that "a person claiming to be entitled to a public office unlawfully held and exercised by another may, by himself or by an attorney and counselor at law, bring an action therefor in the name of the state, as provided in this chapter." There are additional sections relating to what must be stated in the information, what courts have jurisdiction, the procedure and judgment, but none of these matters are material here. By a mere cursory examination of the foregoing provisions of our statute it will be seen that there is one, and only one, condition under which a private person may bring an action in the nature of quo warranto in the name of the state, and that is when he is "claiming to be entitled to a public office unlawfully held and exercised by another." In all other instances mentioned in the foregoing section the Attorney-General must bring the action in the name of the state on his own relation, or, "on leave of court," may bring it "upon the relation of another person." It is not necessary for us to pause at this time to show the nature and history of an action or proceeding in the nature of quo warranto. It must suffice to say that such a proceeding always was, and still remains, a proceeding for the purpose of determining or vindicating rights of a public, and not those of a private, nature. It is true that there are instances where statutes like ours permit a private person to bring the action in the name of the state to determine his right to a public office. Even in such a case the state or public is interested, and, unless there be a statute expressly permitting the claimant of a public office to bring the action, it must be brought by some state official on the relation of the claimant of the office. To this effect is the great, we may say the overwhelming, weight of authority.
Where however, there is a statute authorizing the individual claiming the right to a public...
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