State v. City of Lyons

31 Iowa 432

• Court: Supreme Court of Iowa
• Decided: April 28, 1871
• Status: Published

Opinion

Cole, J.

— Our statute provides (Rev., § 3732), u an information may be filed against any person unlawfully holding or exercising any public office or franchise within this State, or any office in any corporation created by the laws of this State, and when any public officer has done or suffered any act which works a forfeiture of his office, or when any persons act as a corporation in this State without being authorized by law, or, if being incorporated, they do or omit acts which amount to a surrender or forfeiture of their rights and privileges as á corporation, or when they exercise powers not conferred by law.”

Our attention has not been directed to, nor have we been able to find, any case in tbe boobs where proceeding in quo wa/rra/nto, or information in the nature thereof, has been entertained for the purpose of declaring void or annulling a legislative act, whether passed by a State or an inferior municipal legislature. It is not necessary for us to definitely determine in this case whether or not, under our statute, such a proceeding can, under any circumstances, be maintained, since we ground our decision herein upon the special facts set forth in the information.

It appears by the clause of the act creating said city, as set out by the informant, that the city has power “ to establish and locate streets and alleys, and to vacate the same, upon the petition of two-thirds the value of the real property on both sides the street or alley where, the change is desired.” From this it is apparent that the city is clothed with the power to vacate streets, and, therefore, when the council passed the ordinance in question, they did not exercise powers not conferred by law. But, at the most which can be made from all the statements of the information, they were exercising a power conferred by law in an irregular and improper manner. The statute does not authorize this proceeding for a mere irregular exercise of a conferred power, although such irregularity may be sufficient, when tested, to vitiat,e or render void the act done. Every clause of the section of the statute quoted shows that the proceeding by information is only authorized in cases where the office, franchise or corporate authority is exercised in the absence of the vital element of power. If the power attaches, the marnier of its exercise cannot be challenged by information or quo warranto. Nor is it within the legitimate scope of the relief afforded by such proceedings to declare null and void what may have been done, but only to affirm, or adjudge as unauthorized the claim to the office, franchise or power which may have been theretofore, with or withoxit color of right, unlawfully exercised; and in case of adverse claimants to award the office or franchise to him having the legal right thereto.

Affirmed.