OPINION
WALLIN, C. J.
This is
an application to this court for leave to file an information
in the nature of quo warranto. The application is made on the
relation of George J. Walker, a private person, who is
represented in this court by his attorneys, Henry S. Klein
and S. E. Ellsworth. The Honorable O. D. Comstock, attorney
general, opposes the application. The papers presented to the
court consist of a written motion, signed by the attorneys
for the relator, to which is annexed an information, verified
by the relator, and these are supplemented by the affidavit
of said S. E. Ellsworth. Omitting formal parts, the motion is
as follows: "Now comes the relator above named, by his
counsel, and moves the court that he be allowed to file in
this court an information in the nature of quo warranto,
which is hereunto attached and herewith presented, and that
the respondent named in said information be, by a writ of
this court, required, at a convenient time and place, in said
writ named, to answer thereto, and show by what authority it
holds and exercises the powers and functions therein named
and described over the inhabitants of the said territory
therein described." The information is as follows:
"The above-named relator, George J. Walker, respectfully
gives the court to understand and be informed:
First. That McLean county, the above-named respondent, is a
municipal corporation regularly organized under and pursuant
to acts of the legislative assembly of the territory of
Dakota, enacted at its regular sessions in the years 1883 and
1885, and now existing as one of the counties of the state of
North Dakota. Second. That your relator is a resident and
taxpayer of that territory or district of country within the
state of North Dakota, adjoining the said county of McLean,
and described as follows, to-wit, townships 149 and 150
north, of ranges 74, 75, 76, 77, 78, 79, and 80 west of the
fifth principal meridian, which said territory is all
included in, and forms part of, the larger district of
country that was by an act of the legislative assembly of the
territory of Dakota, enacted in its regular session in the
year 1887, created and constituted as the county of Church.
The said territory above described has never at any time been
legally annexed to said McLean county, or incorporated
therein, by any valid or constitutional enactment. Third. In
or about the year 1892 the said respondent, McLean county,
without any warrant, grant, or authority of law whatsoever,
usurped and intruded into, and from that time to the present
has unlawfully held and exercised, governmental functions and
franchises over the people of the said territory hereinbefore
described, in levying and collecting taxes, and in claiming
and exercising all the powers, franchises, and functions
delegated to legally organized counties by the laws of the
state of North Dakota, in, over, and upon the inhabitants and
property of the said territory. Wherefore your relator prays
that the said respondent be required to answer in the said
matters concerning which the court is hereby informed, that
it be ousted forever from the exercise of said usurped powers
and functions over the said district of country hereinbefore
described, and that such other and further relief may be
given against the unlawful acts of said respondent as may
appear to be just and proper." The affidavit of S. E.
Ellsworth is as follows: "The State of North Dakota,
ex rel. George J. Walker et al., as Relators,
v. McLean County, North Dakota, v. McHenry
County, North Dakota, v. Pierce County, North
Dakota. State of North Dakota, County of Grand
Forks--ss.: S. E. Ellsworth, being first duly sworn, upon his
oath deposes and says that he is attorney for the relators
above named, and for each of them; that on or about the day
of June, A. D. 1901, he prepared informations in the nature
of quo warranto in
all respects similar to those entitled as above, and
presented herewith upon this application to this court, and
caused each of said informations to be duly verified by one
of the said relators as aforesaid. Thereafter, on the 2d day
of July, A. D. 1901, affiant presented the said information
to O. D. Comstock, attorney general of North Dakota, and
after fully explaining the facts leading to the preparation
of said informations, and the aim and purpose of the same,
requested that Mr. Comstock, as the prosecuting officer of
the state, and on behalf of the state, apply to
the district court of the proper district for writs of quo
warranto directed to the respondent named in said
informations, or in case he, the said attorney general, did
not care to appear and act personally in the matter, then to
allow such application to be made in his name as attorney
general of the state. Mr. Comstock, after considering the
matter, replied that, in his opinion, there were other ways
of getting it than by quo warranto, and that he would have
nothing to do with the matter, either by applying in person
for the writs, or allowing his official signature to be used
for that purpose. He gave no reason for his refusal to act,
other than that above mentioned. Thereafter, on the 3d day of
July, 1901, affiant appeared before Hon. John F. Cowan, judge
of the district court for the Second judicial district of
said state, in which district are situated the counties of
Pierce and McHenry, two of the respondents named, and, after
presenting the informations against Pierce and McHenry
counties to Judge Cowan, informed him of the refusal of the
attorney general to act, and asked that he, the said judge,
grant leave to file the said informations in the district
court at the instance of the relators named, and issue writs
of quo warranto directed to each of the said respondents as
aforesaid. Judge Cowan stated that he would take a short time
to consider the application, and requested that affiant leave
the information in his hands for that purpose. Affiant did
so, and from that time to the present no action whatever in
the matter has been taken by Judge Cowan. About August 1,
1901, affiant wrote to Judge Cowan, calling his attention to
the fact that there was no response to his application in the
said cases, and urging the importance to relators of some
speedy hearing in the matter, and the great inconvenience
resulting to them from delay. Affiant's letter bore on
the outside of the envelope his name and address, and has not
been returned to him; neither has he received any reply from
Judge Cowan, nor any communication whatever explaining the
delay or the neglect on his part to take action in regard to
affiant's application as aforesaid. Affiant further says:
That the said county of Church, referred to in said
informations, has now, as he is informed and believes, a
population largely in excess of one thousand, and has within
its limits more than one hundred fifty legal voters of this
state. Within the past two years the county has increased
greatly in population, settlement is rapidly progressing in
all parts, and large and important interests of different
kinds are developing. That a proper and just determination of
the questions presented by said application will become more
difficult with the further advance of population and
development of the material resources of the state and
county, and that delay in the determination of its political
status will affect injuriously the interests of said county.
Affiant further says that McLean county, one of the
respondents, is in the Sixth judicial district, and the other
two, Pierce and McHenry counties, are in the Second judicial
district; that he is informed and believes public sentiment
and feeling in all three of the counties named
is strongly opposed to any relinquishment of their claim to
jurisdiction over part of Church county; that speedy and
adequate relief against the claims and illegal acts of said
respondents cannot be obtained in the district courts of
either district, or in any other tribunal of this state,
except in the supreme court." At the time these papers
were presented to this court, other and altogether similar
papers were presented by the same counsel, whereby leave was
asked to file informations, respectively, against the
counties of Pierce and McHenry. The several informations are
substantially the same, and hence all the applications will
be considered together, and disposed of by a single order.
Briefs
in support of the application have been submitted by counsel
for the relator, and the attorney general has presented a
brief in opposition thereto.
With
reference to a preliminary matter of practice, we deem it
proper to notice that the relator has not, by this
proceeding, asked this court to issue the writ of quo
warranto, but, on the contrary, has applied to the court for
leave to file an information in the nature of quo warranto.
In this, counsel have pursued the proper course. It is true
that the state constitution, by section 87, expressly confers
upon this court the power to issue the writ of quo warranto
and it nowhere authorizes this court, in terms, to proceed by
information in the nature of quo warranto. Nevertheless,
under the established construction of similar provisions in
the constitutions of other states, it is held that the power
to issue the writ embraces the authority to proceed by
information, and the latter...
