State ex rel. Weinsheim v. Leischer

Winslow, J. If, as alleged in the complaint, a majority of the legal votes at the election held under sections 862 to 865 of the Statutes were not cast in favor of incorporation, then it is certain that the village never was legally incorporated. This proposition is not questioned by the respondents, but they claim in support of the demurrer that (1) the re-lators cannot maintain the action in the name of the state, but that it must be brought on an information by the attorney general; and (2) that the village of Neosho is a necessary party defendant. These are the only questions ^ seriously ai-gued upon this appeal, and they will be briefly considered. 1. This is a civil action, brought under sec. 3463, Stats. 1898, to obtain the relief formerly obtainable at common law by the use of the writ of quo warranto. Sec. 3466 enumerates the cases in which the action may be brought, and provides that it may be brought by the attorney general in the name of the state upon his own information, or upon complaint of any private party, and, further, that when the attorney general refuses to act, or when the office usurped pertains to a county, town, city, village, or school- district, the action may be brought in the name of the state by a private person on his own complaint. In the present case it is alleged that the attorney general has refused to act, and, further, it appears that the offices which are alleged to have been usurped are vil [478] lage offices; hence the case seems to he brought directly under the clause which authorizes it to he brought in the name of the state by a private person on his own complaint. True, such private person, when not suing on behalf of the public, must have some interest in the question, more than that which is common to all members of the community; but that interest certainly appears when it is shown that he is a property owner and taxpayer in the village, and hence is necessarily pecuniarily affected by the acts of the pretended village officers in levying taxes or expending moneys. We can enter-' tain no doubt but that the action is properly brought by the private relators named in the complaint, under the express' terms of the statute. It is still an action by the state, but the state has, by statute, permitted it to be prosecuted by private parties. 2. The question whether the village whose corporate existence is attacked is a necessary party defendant is more difficult of solution. Where an individual usurps an office in a legal corporation, the action must, of course, be against the individual so usurping; and, where a legal corporation usurps franchises which it does not possess, the action must be against the corporation itself. These rules seem plain and unquestionable. But when it is alleged that a body claiming to be a corporation is not in fact such, and the object of the action is to procure a judgment declaring it to have no legal existence, the result is not so plain, and the authorities are in conflict. One line of authorities holds that in such a case it is sufficient to make the corporate officers parties, because, if the corporation is made a party, its existence as a corporation is thereby recognized. People ex rel. Weber v. Spring Valley, 129 Ill. 169, 21 N. E. 843; State ex rel. Summers v. Uridil, 37 Neb. 371, 55 N. W. 1072; 17 Ency. of Pl. & Pr. 437, and cases cited in note 4. This technical objection, however, is rejected by many courts, and upon persuasive grounds. The reasoning of these last-named courts is, in ef479 feet, that, as the body whose corporate existence is attacked has a de facto existence, it should have its day in court before any court should pronounce a judgment ending its existence, and that a complaint which affirmatively shows that the corporation is not authorized by law cannot he construed as admitting its corporate character. People v. Montecito W. Co. 97 Cal. 276, 32 Pac. 236; State ex rel. Wetzel v. Tracy, 48 Minn. 497, 61 N. W. 613; State v. Atlantic Highlands, 50 N. J. Law, 457, 14 Atl. 560; State ex rel. Crow v. Flemming, 158 Mo. 558, 59 S. W. 118. In High on Extraordinary Legal Remedies, at sec. 696, it is said that, when the real purpose of the action is to test the right of a city to exercise municipal franchises, the corporation itself is a necessary party defendant. The rule is stated by Spelling thus: “When the purpose is'to suppress a usurpation of corporate franchises by individuals, the information should name and proceed against the defendants as individuals, except in case of a pretended municipal corporation2 Spelling, Extraordinary Remedies, § 1843. There has been no adjudication in this state upon the subject, and we are at liberty to adopt the rule which seems better -fitted to promote justice. There seem to be quite persuasive reasons why a municipal corporation de facto, which is performing the various functions of city government, should not be dissolved in a proceeding brought simply against its acting-officers. The entire population of the supposed municipal body is deeply interested in the outcome, and there should he no opportunity for collusive action by unfaithful officers, or for a sacrifice of public rights without a full hearing. This can best be obtained by making the corporation which is attacked a formal party to the litigation. Upon this ground alone, therefore, the demurrer was properly sustained. Upon all other grounds it should have been overruled. The court, however, sustained the demurrer on the additional ground that the plaintiffs had not legal ca [480] pacity to sue, and Renee Re at once dismissed tRe complaint, because tRe plaintiffs could not cure tRis defect by amendment. TRis was erroneous. TRe demurrer should Rave been sustained on the ground of defect of parties defendant alone, and the order should Rave granted leave to the plaintiffs to amend and bring in the village as a party. By the Court. — So much of the order appealed from as sustains the demurrer on the ground of defect of parties defendant is affirmed; and the remaining parts of the order which are appealed from and the judgment of dismissal are reversed; and the action is remanded with directions to enter an order granting leave to the relators to plead over, as they may be advised, and bring in the village as a party defendant, upon the usual terms. No costs will be taxed against either party in this court, except that tRe costs of the cleric of this court will be taxed against the respondents.