State ex rel. v. Village of Kent

• Decision Date: 17 November 1905
• Docket Number: Nos. 14,591-(30).,s. 14,591-(30).
• Citation: 96 Minn. 255
• Parties: STATE ex rel. EDWARD T. YOUNG, ATTORNEY GENERAL v. VILLAGE OF KENT and Others.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 255

96 Minn. 255

STATE ex rel. EDWARD T. YOUNG, ATTORNEY GENERAL v. VILLAGE OF KENT and Others.¹

Nos. 14,591-(30).

Supreme Court of Minnesota.

November 17, 1905.

Appeal by relator from an order of the district court for Wilkin county, Flaherty, J., vacating a writ of quo warranto previously issued by that court upon relation of the attorney general, and dismissing the proceedings. Reversed.

Edward T. Young, Attorney General, Edward Balentine and Jones & King, for appellant.

J. W. Mason and Purcell, Bradley & Divet, for respondents.

ELLIOTT, J.

This is an appeal by the state of Minnesota from an order of the district court vacating and setting aside an order permitting the institution of proceedings in quo warranto against the village of Kent and its officers and trustees.

The writ was issued upon an information exhibited by the attorney general of the state, acting ex officio on behalf of the public, and not upon the relation of a private relator. It recited that because of certain irregularities, therein fully set forth, the village had never been legally incorporated, and that the pretended incorporation had no force or effect. The writ was duly issued on May 17, 1905. On June 5 the respondents moved to dismiss the information and writ on the grounds (1) that the court had no jurisdiction in the premises, and (2) that the cause of action was not a proper case for quo warranto in the district court, and that by reason of special and exceptional circumstances involving the corporate existence of a municipal corporation and the interest and convenience of the public, application for said writ should have been made to the Supreme Court of the state. The writ had been made returnable on that date, and a motion seems then to have been made to dismiss the information on the ground (1) that it was not a proper case for quo warranto in the district court, and (2) that the order permitting the issue of the writ had been inadvertently made without consideration and without the court having exercised any discretion therein. The motion was granted upon both grounds.

The state contends that the trial court erred in granting this motion, because (1) it had full and complete jurisdiction and (2) the attorney general had the right to institute the proceedings without the consent of the court, and (3) even if the court had any discretion in the matter, having once issued the writ, its discretion was exhausted, and it was then its duty to hear and determine the cause upon the merits.

1. We do not understand counsel for the respondents to seriously contend that the district court was without jurisdiction to entertain and determine this proceeding. Chapter 80, § 1, R. S. 1851, abolished the writ of quo warranto and proceeding upon information in the nature of quo warranto; but that statute was repealed by chapter 122, G. S. 1866, which revived the writ as a common-law writ to be issued in a proper case by the district court, as the court of general original jurisdiction, the historical successor of the Court of King's Bench. State v. Otis, 58 Minn. 275, 59 N. W. 1015; State v. Lockerby, 57 Minn. 411, 59 N. W. 495.

This court also has original jurisdiction in quo warranto, but the constitution and statutes recognize the desirability that such proceedings should ordinarily be instituted in the lower courts. Under § 4823, G. S. 1894, the Supreme Court will not order the writ to issue when "there is a remedy in the district court at all adequate."

Section 4823, G. S. 1894 (G. S. 1878, c. 63, § 1), which provides for the exercise of the jurisdiction authorized by article 3, § 1, of the constitution, empowers the Supreme Court to issue quo warranto writs, "subject to such regulations and conditions as the court may prescribe." These conditions are prescribed in State v. Otis, supra, where it was said: "This court will not grant such an application if there is a remedy in some other court which is at all adequate, unless under special and exceptional circumstances, as, for instance, that there will be great injury or inconvenience to the public by reason of the delay and uncertainty caused by commencing in the lower court and awaiting a final determination on appeal to this court." State v. Dowlan, 33 Minn. 536, 24 N. W. 188; State v. Gates, 35 Minn. 385, 28 N. W. 927; State v. Moriarty, 82 Minn. 68, 84 N. W. 495.

But it will be noted that it is the discretion of this court, and not that of the district courts, which is referred to in the statute. The jurisdiction of the Supreme Court being to a certain extent voluntary, it may decline to order the writ to issue in a case which comes within the conditions, even though the district court, under the same circumstances, would have no right to refuse it. The law which confers original jurisdiction upon this court expressly authorizes it to define the conditions under which it will be exercised; but the jurisdiction is conferred on the district courts without any such limitation. Their jurisdiction is complete, and in the exercise thereof they have a judicial discretionary power to grant or refuse leave to file informations in the nature of quo warranto when applied for by individuals.

2. It is further contended that, even if the court had any discretion in the matter of allowing the information to be filed and the writ to issue, it was exhausted when the court once exercised its discretion and allowed the information to be filed and the writ to issue, and nothing thereafter remained for it to do but try and determine the issues of law and fact in accordance with the rules of law as in ordinary cases.

In People v. Regents, 24 Colo. 175, 49 Pac. 286, Mr. Justice Campbell said: "The authorities seem to be unanimous that, when once the discretion of the court in which the proceeding is brought has been exercised and permission given to relator to file an information, such discretion is exhausted, and may not be recalled; but, on the contrary, the court must then proceed to determine the controversy the same as any other upon the law and the facts." In 2 Spelling, Ex. Rem. § 1777, it is said: "Where, however, the court has in the exercise of its discretion permitted the information to be filed, its discretionary power is thereby exhausted, and the issues of fact and law as presented must at the trial be determined according to the strict rules of law as in ordinary cases." In State v. Brown, 5 R. I. 1, the court said: "The discretion to allow in such a case the filing of an information of this character is, as we apprehend, all the discretion which courts * * * of authority justify. When the information is filed, all the discretionary power of the court is expended." To the same effect are High, Ex. Leg. Rem. (3d Ed.) § 606; People v. Golden Rule, 114 Ill. 34, 28 N. E. 383; People v. Paisley, 81 Ill. App. 52; Place v. People, 83 Ill. App. 84; State v. Elliott, 13 Utah, 200, 44 Pac. 248; State v. Shank, 36 W. Va. 223, 230, 14 S. E. 1001. And see Rex v. Brown, 4 T. R. 276.

Mr. Justice Campbell's statement that the authorities seem to be unanimous is hardly correct, as there are cases which hold that this discretionary control remains with the court until the case is finally determined, and that where leave is improvidently given the court may, upon the hearing, refuse relief upon the same grounds upon which it might originally have refused leave to file the information. People v. Commissioners, 31 Ill. App. 219, 223; People v. Hamilton, 24 Ill. App. 609; State v. Hoff, 88 Tex. 297, 31 S. W. 290; State v. Claggett, 73 Mo. 388.

We are of the opinion that the court exhausts its discretion when it exercises it upon the preliminary application for leave to file the information. This presumes, however, that the court actually exercises its discretion, and does not deprive it of the right to dismiss the proceedings if it subsequently appears that it acted improvidently or through inadvertence and under a misapprehension of facts. Gilroy v. District Attorney, 105 Pa. St. 484; Commonwealth v. Kistler, 149 Pa. St. 345, 24 Atl. 216. Under such circumstances no judicial discretion is exercised.

3. But has the court any power to refuse to allow the information to be filed in a case such as the record here discloses? This question cannot be answered intelligently without some consideration of the origin and development of the writ of quo warranto and the information in the nature of the writ of quo warranto, and also of the practice and procedure at common law and under the early English statutes, which were a part of the common law as it was adopted in this country. The historical phase of the subject will be found somewhat extensively presented in State v. Elliott, 13 Utah, 200, 44 Pac. 248, State v. Ashley, 1 Ark. 279. High, Ex. Leg. Rem. (3d Ed.) § 605, and in Blackstone, Com. bk. 3.

A very brief résumé only is sufficient to show beyond the possibility of doubt or cavil that the ancient writ of quo warranto and the information in the nature of quo warranto at common law is and always was a writ of right at the instance of the attorney general ex officio, as the representative of the crown, commonwealth, or state. As said by Chief Justice Comegys, the writ of quo warranto had its "existence in the womb of the common law before the time of the Crusades, although never appearing upon the statute books, as aided by parliamentary provision for its exercise until the time of the first Richard." State v. Stewart, 6 Houst. (Del.) 359.

It issued out of Chancery, and was returnable at first before the King's Bench at Westminster, and at a later period before the justices in eyre. When these justices were displaced by the judges on the various circuits, the writ became again returnable before the justices at Westminster. In the unusually felicitous words of Coke, "with justices in eyre this branch lived, and with them it died." This was the ancient writ, a writ of right for the king,...