State ex rel. Sheridan v. Millis

• Decision Date: 02 January 1912
• Parties: STATE ex rel. SHERIDAN et al. v. MILLIS et al.
• Court: Oregon Supreme Court

119 P. 763

61 Or. 245

STATE ex rel. SHERIDAN et al. v. MILLIS et al.

Supreme Court of Oregon

January 2, 1912

Appeal from Circuit Court, Coos County; L.T. Harris, Judge.

Action in the nature of quo warranto by the State, on the relation of T.R. Sheridan and others, against C.J. Millis and others. From a judgment sustaining a demurrer, relators appeal. Affirmed.

This action is brought under section 366, L.O.L.T.R. Sheridan and three others as relators, in the name of the state of Oregon filed an amended complaint in the circuit court for Coos county, the opening paragraph of which is as follows "The plaintiffs above named come by A.M. Crawford Attorney General of the state of Oregon, who prosecutes this action on behalf of the state, and by E.B. Watson, attorney for plaintiffs, and file this amended complaint, and complain of the defendants, and for their cause of action allege the following facts." The substance of the pleading is that the relators, together with three others, were the duly elected, qualified, and acting directors of the Coos Bay Roseburg & Eastern Railroad & Navigation Company, a private corporation formed for the purpose of operating a railroad between Marshfield and Myrtle Point. They charge that the defendants have unlawfully intruded into the office of director of said corporation and excluded the relators therefrom, and demand judgment that the defendants have no right or title to the office of director of the corporation, that they be excluded from participation in the directorate, and that the relators be declared to be such directors. The defendants demurred to this complaint because, among other things, first, "the above-entitled court has no jurisdiction of the person of the defendant or of the subject of this action *** for that it does not appear from said amended complaint that said action has been commenced and prosecuted by the prosecuting attorney of the Third prosecuting attorney district of the state of Oregon, the district where said cause is triable, or that the original or amended complaint has been signed by him; and, *** third, that said amended complaint does not state facts sufficient to constitute a cause of action."

A.M. Crawford and E.B. Watson, for appellants.

Wm. D. Fenton and James E. Fenton (J.E. Foulds and A.J. Sherwood, on the brief), for respondents.

BURNETT, J. (after stating the facts as above).

The substantial question presented for our consideration is whether a district attorney or the Attorney General shall commence an action of this kind. Chapter 5, tit. 5, L.O.L. §§ 363-377, both inclusive, was enacted in 1862. Section 363 says that "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 those forms may be obtained by action at law in the mode prescribed in this chapter." After sections 364 and 365, relating to actions against corporations either by direction of the Governor or by leave of court, section 366 appears as follows: "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. ***" Section 368 of the chapter mentioned states that: "The actions provided for in this chapter shall be commenced and prosecuted by the prosecuting attorney of the district where the same are triable. ***" Section 369 reads thus: "When directed by the Governor, as prescribed in section 364, it shall be the duty of the prosecuting attorney to commence the action therein provided for accordingly. In all other actions provided for in this chapter it shall be the duty of the proper prosecuting attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever he has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby." In 1891 the legislative assembly enacted what is now section 2666, L. O.L. "There is hereby created the office of Attorney General of the state of Oregon." In 1901 that body prescribed the duties of the Attorney General in what is now section 2670, L. O.L. So far as litigation is concerned, the provisions of that section are here given: "The Attorney General, at the request of the Governor, Secretary of State, State Treasurer, superintendent of public instruction or any of the said parties, shall, upon the breach thereof, prosecute any official bond or contract in which the state is interested. *** He shall appear, prosecute or defend for the state all suits, causes, or proceedings in the Supreme Court in which the state is a party or interested; and he shall, when requested by any state board, or board of trustees, or by the Governor or Secretary of State or State Treasurer appear, prosecute, or defend any action, suit, matter, cause, or proceeding in any court in which the state is a party or interested; and he shall, when requested, consult and advise with the district attorneys in all matters pertaining to their official duties." It is the relators' contention, in effect, that although the district attorney, before the creation of the office of Attorney General, had authority, and it was his duty, to commence and prosecute the kind of actions in question, yet, when the Legislature in 1891 created the office of Attorney General, that officer at once, by virtue of his office, was vested with exclusive power in such matters. They argue that the Attorney General has all the powers belonging to his office at common law, and cite many authorities to that effect. A careful examination, however, of all the citations shows merely that the powers exercised by an Attorney General at common law are preserved in some form at the present day. There is no efficacy in the mere words "Attorney General" to overcome the direct and express provisions of the statute conferring the power in question upon another officer. In the case of the United States v. San Jacinto Tin Co., 125 U.S. 273, 307, 8 Sup.Ct. 850, 868, 31 L.Ed. 747, Justice Field very aptly says: "I do not recognize the doctrine that the Attorney General takes any power by virtue of his office except what the Constitution and the laws confer. The powers of the officers of England are not vested in the executive officers of the United States government simply because they are called by similar names. It is the theory, and, I may add, the glory, of our institutions that they are founded upon law, and that no one can exercise any authority over the rights and interests of others except pursuant to and in the manner authorized by law."

To sustain the contention of the...