State ex rel. Wetzel v. Tracy
| Decision Date | 07 March 1892 |
| Citation | 51 N.W. 613,48 Minn. 497 |
| Parties | State of Minnesota ex rel. John Wetzel et al. v. Harmon G. Tracy et al |
| Court | Minnesota Supreme Court |
John Wetzel and Michael Ryan presented to this court on October 15, 1891, their information, duly verified, stating that thirty persons, claiming to be residents and legal voters filed a petition June 1, 1891, with the board of county commissioners of Hennepin county, asking that certain territory in that county be incorporated under the name of Village of Minneapolis Park, pursuant to Laws 1885, ch. 145 as amended; that the proceedings had thereon were irregular in numerous particulars, and the attempted incorporation invalid; that respondent Harmon G. Tracy had usurped the office of president, and the other respondents that of trustees, of the supposed village, and that they were acting as such officers, when in fact no legal incorporation had been effected. The relators prayed that these village officers be required to show before this court by what authority they exercised the rights and duties of those offices, and why the supposed incorporation should not be annulled. An order was made on this information that a writ of quo warranto issue as prayed, returnable November 16 1891, and that it be served twenty days before the return day. The writ issued, and was served, and the respondents made return to it, denying the irregularities, and stating facts showing due incorporation of the village. Relators replied, and Robert Jamieson, Esq., was appointed referee and took the evidence offered by the parties, and on January 4, 1892, reported it to this court.
Writ discharged.
Selover & Gould, for relators.
This proceeding is brought by the attorney general on the relation of private parties, as will appear by an inspection of his indorsement of his approval on the original information in the case. 1878 G. S. ch. 79, clearly gives the right to bring this action in this way.
The corporation is properly made a respondent in this action. State v. Independent School Dist., 42 Minn. 357; State v. Gallagher, 42 Minn. 449.
Johnson & Rinehart, Albert E. Clark, and Wilbur F. Booth, for respondents.
The relators fail to show any right to prosecute or maintain this action. 1878 G. S. ch. 63, § 1, confers authority upon this court to grant the writ, but makes no change in the procedure. This section is intended to authorize proceeding solely in the public interest, as distinguished from private interests. Those may be fully protected by proceeding under chapter seventy-nine, (79.) The attorney general is the legal representative of the public and of the state. This action is brought by private citizens represented entirely by private counsel. The attorney general is the proper representative of the people in proceedings in this court when the state is a party, and the court will not recognize any other attorney to represent the people in suits before it. Babcock v. Hanselman, 56 Mich. 27; State v. Williams, 25 Minn. 340; State v. Vickers, 51 N. J. Law, 180; Barnum v. Gilman, 27 Minn. 466.
The relators, by making the corporation a defendant under its corporate name, have estopped themselves to deny its corporate existence. State v. Parker, 25 Minn. 215; People v. City of Spring Valley, 129 Ill. 169.
This is an information in the nature of quo warranto brought at the instance and upon the petition of the relators, private persons, to test the validity of the incorporation of the village of Minneapolis Park. In the case of State v. Parker, 25 Minn. 215, which was an action brought by the attorney general in the district court, under 1878 G. S. ch. 79, it was held that the question whether a certain office could be lawfully exercised in a particular district might be determined in a suit of that character, directly against the party who was alleged to be usurping the functions of such office. It was not, however, questioned that such action might also have been brought directly against the de facto or pretended corporation or body of which such party claimed to be an officer. This is not an action under 1878 G. S. ch. 79, but the writ was allowed and issued in pursuance of 1878 G. S. ch. 63, § 1, and the proceedings must be governed by the rules of the common law. State v. Sharp, 27 Minn. 38, (6 N.W. 408.) The term "quo warranto," used in that section, must be deemed to refer to "an information in the nature of quo warranto" as existing at the common law. State v. West Wisconsin Ry. Co., 34 Wis. 197, 208, 213. Such proceeding may be brought against individuals for intrusion into public offices, and against private and public corporations for usurpation of franchises, or to oust them from the enjoyment thereof. There is no sound reason for the rule suggested on the argument, which would warrant the court in holding, in a case like this, that, by proceeding against the de facto or unauthorized corporation by name, the legal existence of the corporation is admitted. The question goes directly to the right of the corporation to exercise the corporate franchise, and the state may proceed directly against it. State v. Bradford, 32 Vt. 50 at 53; People v. Clark, 70 N.Y. 518; State v. Atlantic Highlands, 50 N.J.L....
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