State v. Winneshiek Co-Operative Burial Ass'n

Smith, J.

(specially concurring) — Because of the importance of the questions involved, and not because of any disagreement with the majority opinion, I would like somewhat to amplify the considerations for upholding the decision of the trial court. This special concurrence seems to me to be justified in view of the dissenting opinion of Judge Bliss.

T. As to the

assumption

of the dissenting opinion that Buie 300 affects

substantive

rights: The

substantive

right involved in a case such as this is not the right of the individual to initiate the action, but it is the right

of the State

to determine whether a public office or franchise is being unlawfully held or exercised, and to terminate any such unlawful possession or exercise. Code of Iowa, 1939, section 12417; Buie 299, Iowa Buies of Civil Procedure.

This substantive right is in no way affected by Buie 300. The sole purpose and effect of the Buie, and of the statute it supersedes, is to define the

procedure

by which the substantive right may be asserted. Under either the statutes or the Buies the action must he brought “in the name of the State.” Whatever change has been wrought by the Buies affects only the

manner

in which the power of the State may be invoked and exercised. As said by Justice Weaver, in State ex rel. Fullerton v. Des Moines City Ry. Co., 135 Iowa 694, 712 , 109 N. W. 867 , 874, the dispute affects “public interests,” and the salutary purpose of the remedy “should not be thwarted by a narrow and technical construction.”

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In that ease it is said that “even where the relator is found to be estopped or disqualified to prosecute the action in his own private interest it has been held that the court will retain jurisdiction and pass upon the merits of the case so far as it affects public interest.” Citing People v. Londoner, 13 Colo. 303 , 22 P. 764 , 6 L. R. A. 444. Here nothing but the public interest is concerned. Neither the ancient quo warranto nor later action in the nature of quo warranto nor the statutory provisions which our Rules (Rule 299 et seq.) supersede have ever been held to create

substantive

rights. They are procedures for enforcing substantive rights already and otherwise created and existing.

II. The dissenting opinion contends that the relator must have a special interest, apart from the general interest of all citizens, in the particular subject matter; and that Mr. "White’s position here as the one who made demand on the county attorney is analogous to that of a relator.

Apparently, in order to differentiate quo warranto from other proceedings in which the State’s prerogative may be invoked by a relator, Judge Bliss goes into the early origins of quo warranto and “proceedings in the nature of quo warranto.” But this early history has nothing to do with the remedy we now loosely refer to as “quo warranto.”

We have held in effect that there is nothing sacred about “Quo warranto, actions in the nature of quo warranto, remedies provided by Section 12428 and kindred laws.” Kosman v. Thompson, 204 Iowa 1254, 1257 , 215 N. W. 261, 262 . Other remedies may be substituted that accomplish the same or similar purposes; e. g., see Code section 8438.

In a recent case there was involved a proposed dissolution of the business of a foreign corporation in Iowa, under the provisions of Code chapter 387. The majority opinion in that case held that the relator need have no special interest. State ex rel. Weede v. Iowa Southern Util. Co., 231 Iowa 784, 837 , 2 N. W. 2d 372 . Tiie statute involved there expressly clothed courts of equity with power to entertain the suit, and provided it might be brought “by the attorney general in the name of the state” or by “a citizen in the name of the state.” Section 8438.

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Rule 300(b) provides that if upon demand of “any citizen of the state” the county attorney fails to bring the action, the attorney general

may do so.

In the Southern Utilities Company case it was held that by Code section 8438 the legislature provides that a citizen, even one without any interest, may at his own expense bring a suit in equity in the name of the State to enforce the power of the State over a foreign corporation doing business within the State.

By Rule 300(b), it is provided that such a citizen (without special interest) may in analogous situations make demand upon the county attorney in order to lay the foundation for the county attorney or the attorney general to act, and may even assume the role of relator himself, by leave of court and upon furnishing security for costs.

If the legislature in one case may waive the necessity for a relator to have a special interest, surely, under the rule-making power the court may do so. Without admitting that Mr. White in the instant case is in the legal situation of a relator, I am convinced his lack of a special interest did not disqualify him for the role he did assume — that of a citizen making demand upon the county attorney to act.

In the ease already quoted from, State ex rel. Fullerton v. Des Moines City Ry. Co., supra, 135 Iowa 694, 712 , 109 N. W. 867 , 874, Justice Weaver also said:

“If' the case made by the petition be one in which the. statutory remedy may be invoked, if the proper officer is in court assuming responsibility for its prosecution, and if due notice of the proceeding has been given to the party named as defendant, every, preliminary essential to the jurisdiction of the court to hear and try such complaint has been observed. ’ ’

It is the statutory duty of the attorney general to prosecute in this court any action in which the State is a party or interested, and in any other court when, in his judgment, the interest of the State requires such action. Code section 149.

He is here assuming the responsibility of this prosecu

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tion and I think the trial court and the majority opinion properly uphold his right in doing so.

Hale, Garfield, Oliver, Wennerstrum, Mulroney, and Miller, JJ., join in this special concurrence.