State ex rel. Summers v. Uridil

55 N.W. 1072, 37 Neb. 371, 1893 Neb. LEXIS 218

• Court: Nebraska Supreme Court
• Decided: June 29, 1893
• Docket: No. 6102
• Status: Published

Opinion

Irvine, 0.

This is an information in the nature of quo warranto, alleging that the respondents, conspiring to usurp the franchise and power to license the traffic in intoxicating liquors, and enjoy its revenue in a place in Butler county known as Abie, procured upon a piece of paper the signatures of certain persons, and thereafter made a writing in the form of a petition, praying for the incorporation, as a village, of said place of Abie, and fraudulently attached said signatures to said writing, making the same' falsely to appear as a petition in due form by a majority of the taxable inhabitants of said Abie for incorporation as a village; that they presented that paper to the board of supervisors of Butler county, and that certain of the respondents appeared before said board and falsely swore that said place of Abie contained more than two hundred and less than fifteen hundred inhabitants, whereas in fact said place •contained in all not more than seventy inhabitants. The information further alleges that by such means the respondents fraudulently procured the county board to make an order pretending to incorporate said place of Abie as a village, and appointing the respondents as a board of trustees of said village; and that the respondents have, ever since said proceedings, unlawfully and fraudulently usurped and exercised the franchise and corporate powers and duties of a village. The prayer is for a writ of quo warranto and judgment of ouster against said defendants and for costs. No answer has been filed and the allegations of the information must be taken as confessed.

It is clear under these facts that the territory designated as Abie was not entitled to incorporation as a village; that no proper petition was filed before the board of supervisors, and that, on the contrary, a grave fraud was practiced upon the board to procure the order of incorporation, whereby the board was induced to act upon a forged petition which conferred no jurisdiction upon the board. Under the common law quo warranto would not lie in such a case. (Rex v. Saunders, 3 East [Eng.], 119.) And there are decisions in the United States to the same effect. Section 704 of the Code of Civil Procedure provides, however, that an information may be filed against any person unlawfully holding or exercising any public office or franchise, or when any ¡persons act as a corporation without being authorized by law. Under very similar statutes it has been held in ■several states, and we think rightly, that in such proceedings against the persons unlawfully exercising the powers ■of an office the legal existence of that office may be determined. (People v. Carpenter, 24 N. Y., 86; State v. Parker, 25 Minn., 215; State v. Gladwin, 41 Mich., 647; State v. Coffee, 59 Mo., 59.) Indeed it would seem that to institute proceedings against the village itself would be to> recognize its existence as a corporation, and that if the incorporation is void the only proceedings must be against the persons undertaking to exercise its franchises. There will be a judgment of ouster and for costs against the respondents.

Writ allowed»

The other commissioners concur.