#### State v. Leatherman et al.

1. Qi'0 Warranto : Jurisdiction of Supreme Court.

The Constitution of 1874, in giving to the Supreme Court power to issue the writ of quo warraanto to test the legality of municipal corporations, may be held, in view of the settled practice of the court, to have included informations for public purposes in the nature of the writ, as well as the writ itself, and prescribes the limits of the power and the proper parties to the suit.

2. Municipal Corporations : Jurisdiction to create.

The act of April 28,1873, conferring power upon Circuit Courts to annex territory to municipal corporations, did not empower those courts to create corporations.

3. Same: Long recognition by State cures illegal creation of.

The State may by long acquiescence and continued recognition of a municipal corporation, through her officers, State and county, be precluded from an information to deprive it of franchises long exercised in accordance with the general law.

Information in the nature of the writ of Quo Warranto.

James JP. Clarke, for relator:

1. It was competent under Art 7, Bee. —, Const. 1868, for the Legislature to impose on County Courts the duty of ascertaining the facts authorizing the assumption of corporate powers, &c.

*82Afc the time Arkansas City attempted to incorporate, the •Circuit Court had been deprived of all jurisdiction, the act of 1868 having been repealed by act of April, 1869. State v. Jennings, 27 Arh., 419.

2. The act of March, 1875, perpetuates only such towns ••as had an actual legal existence under former laws. Arkan•sas City never existed as an incorporated town. Acts 1874-5, p. 2, see. 5.

3. In Arkansas there can be no such idling as a corporation existing- by presumption. Cooley Const. Lim. top p>. 239 ; 1 Dillonon Mun. Corp.,p. 51, sec. 37, (17). In this case the attempt was coram non judice, and 15 Mich., 470, and 16 IZZs., 257, cited for respondents, not applicable. In this connection see 45 Ills. p. 17, et seq. The provisions •of Constitution 1868 and 1874 are exclusive of all others. Const. 1868, Art 5, sec. 49, and corporate powers can only ¡be exercised in the manner provided.

■G. B. Moore, Attorney General, for relator.

Martin & Martin and L. A. Pinclall, for respondents.

Under Constitution of 1868, municipal corporations were •originally organized under general laws. Sec. 50, Art 5, 'Const. 1868. Sections 3202, 3255 to 3258, Gantt’s Dig. All necessary facts existed in this case, and all courts take judical notice of the corporation. Gantt’s Dig., sec. 3,258. The Constitution prescribed no particular forum. The act of 1868 prescribed the Circuit, the act of 1869 the County Court. The latter abolished in April, 1873, and by act of April 28, 1873, vested jurisdiction in the Circuit Court. See sec, 3318 Gantt’s Dig. Purely a ministerial act, not clearly defined, nor after a lapse of time and ac*83-crual of rights, material. The 5th sec., act 1875, cured any ■defects. /Secs. 3198, 3199, 3200, 3201, Gantt’s Dig.; Decs. 3, 4 and 5, act March 9, 1875.

After a length of time courts will not disturb the organ'tion of towns. Jamison v. People, 16 III,, 256 ; People v. Mainard, 15 Mich., 471; TJ. 8. v. Dandridge, 12 Wheat, •64: R. R. Go. v. Greegor, 5 Har. & John., 125; Middlesex v. Davis, 3 Metcalf, Mass., 137; Dunning v. K. A. <& 8. R. R., 2 Garter, 111., 438.

The Constitution of 1874 does not vest power to create corporations in County Courts, and the Legislature cannot give them additional judicial powers ; and unless the act of 1875 confers ministerial powers on County Courts it is unconstitutional, and Circuit Courts which exercise the :residuum of all judicial power are the proper tribunals.

Enquiry is now barred by limitation. High’s Ext. Legal .Rem., par. 692; Knight v. Heaton, 22 Vt., 481; 8ecs. 4129, 5677, Gantt’s Dig,

Eakin, J.

i. quo ¥aeiustof sup r e m e

This case invokes the original jurisdiction of this court, in one of the cases provided for, by the 5th section of Art. VII of the Constitution. It is an x 1 lion by the Attorney General in the nature of an information on behalf of the State, against the Mayor, Aldermen and Recorder of the town of “Arkansas City” to test the legal existence of the corporation ; substantially it is an applicatian for a writ of quo warranto. Notwithstanding some earlier decisions to the contrary, it had long before the adoption of the Constitution of 1874, been the practice of this court to disregard the distinction between the old writ of quo warranto, and the information,in the nature of it; and the Constitution in giving this court power to issue the writ of quo warranto to test the legal existence of municipal corporations, may be held, in view *84of the settled pi’actice, to mean and include informations for public purposes in the nature of the writ, as well as the old writ itself.

limits of tionan0ci p arVjes presenbecl

The language of our Constitution relieves us of the necessity of deciding a point of practice which has been elsewhere a matter of some embarrassment; that is, whether the suit should be against the corporation itself, e& nomine, or may be against its officers. It is that this court may issue the writ to officers of political corporations* “when the question involved is the legal existence of such corporations,” thus not only giving the jurisdiction, but prescribing its limits, and the proper parties.

The cause is submitted on demurrer to the answer. The only question presented by the pleadings is, whether the town of “Arkansas City” can be recognized as an existing municipal corporation. The material facts disclosed by the admissions of the answer are: that an attempt was made to-organize the town as a corporation, upon application to the Circuit Court of Chicot County, and by virtue of an order thereof, made on the twelfth day of September, 1873. It is-conceded, save as to the tribunal, that the organization was-effected, substantially, in accordance with the general incorporation act then in force. It further appears that from that time until the commencement of this suit the town had continuously exercised the powers and franchises of a corporation ; electing officers of whom the mayors successively elected had been commissioned by the Governor, and the others had been duly qualified ; passing and enforcing ordinances, collecting fines, making public improvements, entering into contracts for the public benefit; levying taxes which, from time to time, had been regularly extended on the tax books, and placed in the hands of the County Collector, and that for delinquencies in payment of such taxes* lands had been sold and titles become involved.

*85Other matters of like nature tending to show the' inconvenience and embarrassment of now holding the corporation •void ab initio are urged; and it is also shown that the territory of the town is upon the Mississippi river and the common terminus of two railroads from the interior ; that it has ■a population of from one to two thousand inhabitants, that many strangers are continually passing and that it requires a local police for the protection of property, and the security •of the peace. Further that the ground had been platted into blocks, lots, streets, alleys, parks, &c., which plat had been recorded and sales and transfers had been made with reference thereto.

It will be seen that two points only are presented : 1st. Was the corporation organized in accordance with law so as to acquire thereby a valid existence ; and, 2nd, if not, has the acquiescence of the State for so long a period so affected her right to now question the franchise as to leave it within the power of this Court in the exercise of a sound discretion to refuse a relief fraught with consequences so disastrous to the long line of officers, and list of contractors and purchaser’s of property, who have been acting bona fide in obedience to and accordance with what they supposed to be a legitimate governing body. It goes without saying, that if this Court can find such discretion, it will, under the circumstances disclosed, exercise it to cure what has been done, and maintain the existing order of things. Whilst a moral wrong can never rest harmless, a mere mistake may become so insisted in healthful surroundings, and embedded under supervening rights, as to make its extraction as dangerous .as useless.

Upon the first point it is obvious that the Circuit Court and the petitioners in the proceedings for organization, mistook the tribunal. The power had been conferred upon the Circuit Court by the general incorporation act of 1868 ; *86but this act bad been superseded by another covering the-same ground passed April 9th, 1869. The latter act had not been published in the regular pamphlet acts of the session, but in a separate one commonly known to the profession in our State as McClure’s Digest, which contained a collection of acts supposed to have been adopted by the-Legislature, as a part of the general revision of the whole statutory law of the State. The greater part of them, however, though not all, were held invalid by the Courts (Vinsant admx. v. Knox, 27 Ark., 266). Amongst those sustained was the said act of 1869, vesting in the County Courts the jurisdiction to determine and pronounce upon the-creation of municipal corporations. At that time by the-constitution then in force, the powers which the Legislature-might vest in County Courts were not strictly limited, and the right to confer upon them this power cannot be seriously questioned.

2. municro1u.TioNa tfon sato

On the third of April, 1873, County Courts were abolished,. and Boards of County Supervisors appointed in their stead to which were transferred all the powers and duties of the County Courts. It is noticeable, however, that the Legislature, afterwards, on the twenty-eighth of April, 1873,. seems to have overlooked the former transfer of jurisdiction from the Circuit Courts, or at least to have still considered, it a very appropriate tribunal for kindred subjects. By act of that date, making provision for the annexation of territory to corporations, it was provided that application for the-purpose should be made to the Circuit Courts. It is rather-suggested to the Court, than contended, that this was a recognition of a remaining jurisdiction there, over the subject matter ; which would still authorize those courts to receive and act upon applications for the creation of new corporations. We cannot so extend the language of the act,, which regards annexations only. It seems anomalous, and *87was, perhaps, passed under the mistaken impression that the' act of 1868 was still in force ; but we cannot, on that account, hold the act of April 9th as having been suspended.

So the law stood when the order of the Circuit Court was made, establishing Arkansas City. There was no jurisdiction and the order was void. I find nothing to cure this in the Constitution of 1874, nor in subsequent legislation. The new general incorporation act of March 9th, 1875, sec. 5, adopted only such corporations as were existing at the time the new Constitution took effect, and which had been “described or denominated” by some law then in force. This had not been.

But it had been an existing de facto corporation all the time from 1873 till now; and many things had in good faith been done under it which it would be shocking now to undo. The disastrous consequences would not be confined to the case of Arkansas City. Municipal corporations throughout the State have become numerous. They are not only highly beneficial, but necessary agencies of good government. We can see how many of them may have been heretofore, or may be henceforth, put in operation under the same, or similar mistakes. To declare them all null, after long acquiescence on the part of the State would open a very Pandora’s box of litigation, and produce incalculable hardship and confusion.

This impels us to the broader field of enquiry, whether this court, in view of justice, equity, and the security of titles, can find, in recognized principles of law, sufficient warrant for refusing its aid in opening the flood-gates of such unmitigable evil. )'

The practice of filing informations in the nature of a quo warranto existed at common law. But it was always on the relation of the Attorney General, to vindicate or protect the rights of the crown against usurpation and abuse of its *88franchises. Never upon the relation of a private person to try his right to an office, until the statute.of Anne, which made this proceeding subservient to the trial of private rights of this nature, and allowed informations by the Attorney General on the relation of individual citizens, for their benefit. The statute was never in force in this State. We have other appropriate proceedings' to determine, between individuals, the right to hold office. The course of judicial decisions under the act in England, are however worthy of note, being pregnant examples of their tendency to prevent the abuse of the proceedings, after long acquiescence on the part of those assuming to have been aggrieved.

Originally, upon the passage of the act, the granting of these informations was matter of course ; and when once filed, by leave, the courts felt bound to determine the right by strict law regardless of consequences. This afterwards ceased to be the practice in case of private relators. The granting of leave was made to depend on the sound discretion of the court, which it came to exercise upon the particular circumstances of each case. Although, at common law, the time in which the right to exercise an office might be impeached, was indefinite, the person against whom the remedy, under the act of Anne, was sought, might show that his right had been acquiesced in for a longtime. By analogy to the statute of limitations the time was at first fixed at twenty years. Afterwards it was reduced to six. See cases collected and cited in Bacon's Ah iclgemeni Title “Informations'' (D). See also High on Extraordinary Remedies Title “Quo Warranto” (passim). I do not find, however, that any English cases go to the extent of holding that this applies to other cases than those of private relators seeking, personal rights; or that the doctrine of “nullum tempus occurrit regi” has ever been there *89ignored in case of such applications, in behalf of the sovereign, as the Attorney General might have made before the act of Anne. The discretion of the court, indeed, although not used at first, is based upon the language of the act, which expressly provides that the relations therein allowed must be filed by leave of court.

But times change, and the exigencies of society and good .government change with them. The great multitude of new municipal corporations continually springing up in the American states, their convenience, and indeed absolute necessity, as agencies of government, and the danger of the impending evils to which I have alluded, have induced •several American courts and distinguished jurists to go a •step further, and apply this discretion to proceedings on the part of the State herself, without any private relator. The step seems to have been impelled ex necessitate rei, and in truth implies sounder views, and advanced ideas of the nature of sovereignty, as resting in the State for the public good, and not for the distraction of business, and confusion of rights.

The case of Jameson v. The People, 16 Illinois, p. 257, was a quo warranto to test the validity of a municipal corporation, which had not been organized in accordance with aw. The corporation had gone into operation and had been named in a subsequent legislative act, giving it certain powers. This was held to have cured the irregularity, but the opinion of the court goes upon still broader grounds. Skinner, J., said: “If there is no such corporation, all acts done under the supposed corporate powers, are mere .nullities, and no liabilities can exist by reason of contracts made in the corporate name. * * * * Were we to hold, after this acquiescence of the public, and these recognitions of the Legislature, that the town remains unincorporated, on account of some defect in its original organiza*90tion as a corporation, what confidence could individuals have-in the validity of securities emanating from these local authorities ? Municipal corporations are created for the public good — -are demanded by the wants of the community and the law, after long continued use of corporate powers,, and the public acquiescence, will indulge in presumptions in favor of their legal existence.” It is true that the defect-of organization in that case was onty the result of an irregularity, and there had been an express legislative reorganization. But the grounds upon which the court proceeds-extend much beyond the facts of the particular case.

The case of The People v. Maynard, 15 Michigan, 470, was an information in the name of the attorney general, by a private relator, against the treasurer of a county. The-issue involved the legal existence of a county. The case,, as to facts, is not in point, as an authority; but in the course-of the opinion I find these broad grounds again asserted: “In public affairs, where the people have organized themselves, under color of law, into the ordinary municipal bodies, and have gone on, year after year, raising taxes, making improvements, and exercising their usual franchises,, their rights are properly regarded as depending quite as much on the acquiescence, as on the regularity of their origin, and no ex post facto enquiry can be permitted to undo their corporate existence. Whatever may be the rights of individuals before such general acquiescence, the corporate standing of the community can be no longer open to question.”

There is a case in the earty reports of Alabama, State, etc., v. Burnett, 2 Ala., N. S., p. 140, in which the judge,, in arguing, recognizes the discretion of the court to refuse an information at the instance of one who had no claim to the-office, and also when the franchise involved no qestion of private rights “as in the cases of corporations, either public- *91or private.” The distinction drawn in that case, however, seems to us novel, inasmuch as it denies the discretion where the information is in behalf of a private right.

The opinions above quoted taken altogether, although none are exactly in point, seem to us utterances of an enlightened and progressive jurisprudence, widening and adapting itself to free American institutions, and the rapid developments of the country in the growth of towns and cities.

^mtoic-. ^Lon^ac-' Restate cures illeg^iityoi

We are emboldened bjr them to declare in behalf of the public good, that the State herself may, by long acquieseenee, and by the continued recognition through her own J . officers. State and county, of a municipal corporation, be precluded from an information to deprive it of franchises long exercised in accordance with the general law.

The case made by the answer shows an acquiescence for nearly nine years, and a recognition by the Governor, county court, county clerk, county collector, and the whole of a population now over one thousand. If the answer be true, the corporation of Arkansas City should not now be held null and void.

Overrule the demurrer.