[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 275 IN BANC. Quo warranto action by the State, by A.E. Hagglund, as District Attorney for Tillamook county, on the relation of the Security Savings Trust Company, as trustee for the heirs of Warren E. McCord, deceased, and others, against School District No. 9 of Tillamook county and others. From an adverse decree, relators appeal. On motion to dismiss the appeal.
MOTION OVERRULED. REHEARING DENIED. This is a motion by respondents to dismiss the appeal. The action in which the judgment appealed from was taken is a quo warranto action that was brought in the name of the state on the relation of certain landowners to have School District No. 9 in Tillamook county declared to be illegal and void in so far as the boundaries of the district include the lands of the relators. The action was commenced by the filing of a complaint signed by the district attorney in his official capacity. After its commencement, the district attorney objected to any further prosecution of the action and moved to dismiss the proceeding. That motion was denied and the cause was then tried before the Honorable George R. Bagley, circuit judge, who entered a decree holding that the inclusion of the relators' lands within the boundaries of the district was *Page 276 illegal and void but that the relief prayed for could not be granted for the reason that the action was barred by the statute of limitations. From this decree the relators appealed, but the district attorney refused to sign the notice of appeal or to authorize the same to be taken, and his failure to so act constitutes the sole ground for the motion.
The common-law writ of quo warranto and the proceedings by information in the nature of quo warranto have been abolished in this state by statute, but the same common-law remedies, except as changed by the statute, may now be had in an action at law brought pursuant to the provisions of chapter 6, title V, of the code which provides the procedure to be followed in the action. Under the express provisions of that chapter, all actions brought thereunder must be maintained in the name of the state and shall be commenced and prosecuted by the prosecuting attorney of the district where the same are triable. An examination of these statutes will show that there are two general classes of quo warranto actions provided by the code. The first class embraces those cases in which the interest is public and the private interest, if any, is only incidental to the main relief sought in the action. The second class embraces those cases in which there is both a public and a private interest. The first class of cases includes actions to set aside a corporate organization, whether public or private, where it was procured by some fraudulent suggestion or concealment of a material fact by the persons incorporated or with their knowledge and consent, and can be brought only by order of the governor (section 5-602, Oregon Code 1930); actions to annul a private corporate character or the existence of such corporation which can be *Page 277 brought only by leave of the court (section 5-603); and actions to vacate or annul letters patent issued by the state (section 5-605).
In all actions embraced within the first class, the whole purpose of the action is to protect the public from an invasion of its rights by the defendant. In that class of cases the only rights and interests sought to be enforced are public in their nature and pertain to the public as a whole and not to any individual member of the public. From this it naturally follows that the action in cases of that kind is a state action and must be commenced on the information of the district attorney who is the law officer of the state.
As was said in State ex rel. v. Douglas County Road Co.,10 Or. 198, by Mr. Justice WALDO speaking for the court:
"Therefore, when, as in the case before us, the district attorney files a quo warranto information in a distinctly state action, he has as much the sole control over it as the attorney general would have in a like case at common law. A relator cannot be a party to the proceeding — is a mere stranger — and if his name is put in the information, it is surplusage."
Under that decision, and it is the unquestioned law of this state, in quo warranto informations filed by the district attorney in cases of the first class, that is to say under sections 5-602, 5-603 and 5-605 of our Code, the district attorney has the sole control over their prosecution, both in the circuit court and upon an appeal to this court, and there can be no appeal in a case of that kind unless taken by the district attorney or by his duly authorized deputy, or under their direction.
In cases of the class to which we are now referring, the state is the real party in interest and must act, if at all, through its law officer who, under our statute, *Page 278 is the district attorney of the district where the action is triable. Hence, in all such cases, except where the district attorney acts on the direction of the governor or by leave of the court, the question of whether the action shall be commenced or be prosecuted to a final determination is a matter solely within the discretion of the district attorney.
This action, however, is not of that class. It was brought under section 5-604, Oregon Code 1930, on the relation of private parties who were seeking to enforce a private interest. That section provides that an action at law may be maintained in the name of the state upon the information of the prosecuting attorney or upon the relation of a private party. It was expressly held in State ex rel. v. Stevens, 29 Or. 464 (44 P. 898), and again in State ex rel. v. Cook, 39 Or. 377 (65 P. 89), that, where the action is brought in the name of the state upon the relation of a private party and is signed by the district attorney in his official capacity, this is sufficient to comply with the provisions of this section, and in the latter case it was held that, where the complaint had not been signed by the district attorney although, at the time the action was brought on for trial, he caused his appearance to be noted upon the journal of the circuit court and showed that the case had been commenced and was being prosecuted with his express consent, that alone was not sufficient to entitle the action to be maintained.
In the case at bar the complaint contained the signature of the district attorney in his official capacity and the action was brought with his consent and this, under the ruling of the two cases last cited, was sufficient to entitle the action to proceed to a final determination. *Page 279
Section 5-607, Oregon Code 1930, provides:
"When directed by the governor, as prescribed in section 5-602, it shall be the duty of the prosecuting attorney to commence the action therein provided for accordingly. In all other actions provided for in this chapter it shall be the duty of the proper prosecuting attorney to commence such action, upon leave given where leave is required, in every case of public interest, whenever he has reason to believe that a cause of action exists and can be proven, and also for like reasons in every case of private interest only in which satisfactory security is given to the state to indemnify it against the costs and expenses that may be incurred thereby."
In State ex rel. v. Cook, supra, it was expressly held that in actions brought under section 5-604 in the name of the state either upon the information of the prosecuting attorney of the district where they are triable, or on the relation of a private party "in either case, it is made the duty of the prosecuting attorney to commence and prosecute the action".
Section 5-606 provides:
"* * * When the action is upon the relation of a private party, as allowed in section 5-604, the pleadings on behalf of the state shall be verified by such relator as if he were the plaintiff in the action * * *. When an action is commenced on the information of a private person, as allowed in section 5-604, having an interest in the question, such party, for all the purposes of the action, and as to the effect of any judgment that may be given therein, shall be deemed a complaintiff with the state."
Under these and the provisions previously referred to, it seems clear that it was the intention of the statute in the cases embraced in section 5-604 to confer upon private persons the right to have their interests determined *Page 280 by the court whenever the district attorney has reason to believe that a cause of action exists and can be proved, and the required indemnity has been given, and, in such case, to make it the duty of the district attorney to commence and prosecute the action to a final determination, and that, although the statute makes the district attorney the sole judge of whether the action shall be commenced, it intended to confer no power upon him to arbitrarily refuse to bring an action in a proper case nor, after the action has been once commenced by him, to arbitrarily or capriciously prevent the parties from having their rights adjudicated. Hence we hold that it was not within the power of the district attorney, after he had once consented to the commencement of the action and had signed the complaint in his official capacity and permitted it to be filed, to thereafter arbitrarily block the further prosecution of an action of this nature where both Public and private interests are involved, either by moving to dismiss the action where no legal grounds therefor exists or by refusing to join in an appeal which the co-plaintiffs of the state, in good faith, desire to take. Under our system of law no officer in the performance of the duties of his office can act arbitrarily or capriciously, nor will he be permitted to refuse to act in violation of any duty imposed upon him by statute. The law applicable to the questions involved upon this appeal is, we think, well stated in 51 C.J., p. 324, as follows:
"Generally speaking, the institution of a quo warranto proceeding or the making of an application for leave of court to institute it, in a case where such leave is necessary, is a matter within the discretion of the attorney-general or prosecuting attorney, and the proceeding cannot be instituted or maintained without his *Page 281 consent. In a case which is of purely public interest and does not involve any private or individual right or grievance, the foregoing rules obtain to their full extent; the discretion of the attorney-general or prosecuting attorney is arbitrary and uncontrollable, and his refusal to act does not confer upon a private person a right to proceed. Also, in a case within a statute authorizing the attorney-general or state's attorney to institute the proceeding, or apply for leave of court to institute it, at the instance of private persons, if private rights or grievances are involved, the consent of the officer is essential, but he has no arbitrary and uncontrolled discretion; the only discretion vested in him is to determine whether the documents and evidence presented to him are in proper legal form and prima facie sufficient, and if they are, it is his duty to sign the petition and present it to the court."
In State ex rel. v. Fendall, 135 Or. 142 (295 P. 194), this court refused to dismiss the appeal notwithstanding that the notice of appeal had not been signed by the district attorney. We think that a like ruling should be made in this case.
The motion, therefore, will be overruled.