DISSENTING.
I am unable to concur in the opinion of the court for the reason that, as I view it, the law does not sanction a suit by a private party to question, under circumstances such as are present in this case, the validity of annexation of territory by a municipality.
The court has construed the complaint as one brought under the declaratory judgments statute, I disagree. Neither the counsel who drafted the complaint nor counsel for the defendant have ever suggested that this is the nature of the proceeding. In the court below counsel for plaintiff said in a brief: “This is a proceeding in equity.” They say in their brief in this court: “Plaintiff brought suit in equity and prayed that the court restrain the city of Estacada from including plaintiff’s dam and power plant within its boundaries for the purpose of taxation, decree the annexation of the dam and power plant void, and restrain the assessment and collection of city taxes thereon.”
The only language of the complaint which has the slightest tendency to suggest a declaratory judgment proceeding is the following from the prayer: “decreeing that the said attempted annexation by defendant city and said annexation proceedings and said purported charter of defendant city called the Estacada Charter of 1950 are void as to the following described real property.” Similar language may be found in practically every complaint brought to enjoin the enforcement of an alleged invalid or unconstitutional statute or ordinance, but it has not heretofore been *203thought sufficient of itself to convert the proceeding from one under the injunction statute to one under the declaratory judgments act. It may he conceded that at first glance some justification for the court’s view may he found in the case of Miles v. Veatch, 189 Or 506, 535, 220 P2d 511, 221 P2d 905, the decision on which the court relies. I am unwilling to extend the authority of that case. There is an element here present not found in Miles v. Veatch. The authority to bring a declaratory judgment proceeding attacking á municipal annexation is found in § 6-602, OCLA, which provides:
“Any person * * * whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.”
Section 6-601, OCLA, provides:
“ * * * In any proceeding which involves the validity of a municipal charter, ordinance or franchise, the municipality affected shall be made a party, and shall be entitled to be heard, and if the constitution, statute, charter, ordinance or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.” (Italics added.)
In this case the complaint alleges that the attempted annexation and the new charter “constitute the taking of private property without just compensation, and without due process of law in violation of the Constitution of the United States and of the State of Oregon. ’ ’ *204The attorney general was not served with a copy of the proceedings as the statute requires. Certainly, we are not warranted in assuming that counsel attempted to bring themselves within the declaratory judgments act and at the same time that they ignored one of its requirements. But, if we do treat the complaint as one for a declaratory judgment, then it is our duty to dismiss the suit for failure of the plaintiff to comply with this statutory requirement. Johnston v. Board of Adjustment, 15 NJ Misc 283, 190 A 782. The fact that the court holds the constitutional question to be without merit is, in my opinion, beside the point. While it is true that two courts have held that this provision is merely directory, most of the courts which have considered it have held that the failure to serve the attorney general was fatal. See Borchard, Declaratory Judgments 2d ed, 275, cases cited in note 2. At any rate, whether this is a mandatory requirement or not, the failure to observe it is certainly relevant on the question of the character of the proceeding. This is particularly true when the court must resort to a strained construction in order to convert what the parties thought was an injunction suit, pure and simple, into a declaratory judgment complaint. In Miles v. Veatch, it should be observed, the attorney general himself represented the defendants, and, of course, was served with all the papers in the case.
However, for reasons presently to be stated, this question is not, in my view, of major importance. Whether this be a suit in equity or one for a declaratory judgment, the fundamental objection, that only the state can question the annexation, remains the same.
The assessor and the sheriff have not appealed, and we are concerned only with the decree against the city.
*205I believe that the following propositions correctly state the law governing this controversy.
The validity of a de facto corporation cannot be collaterally attacked. State ex rel. v. School District No. 23, 179 Or 441, 461, 172 P2d 655; Northern Pac. Ry. Co. v. J. Day Irr. Dist., 106 Or 140, 159, 211 P 781, and Oregon cases there cited; Tyree v. Crystal Dist. Imp. Co., 64 Or 251, 126 P 605; Bennett Trust Co. v. Sengstacken, 58 Or 333, 113 P 863; School District v. School District, 34 Or 97, 55 P 98; 1 McQuillin, Municipal Corporations 3d ed 597, § 3.51; 62 CJS, Municipal Corporations, 177, § 66; 37 Am Jur, Municipal Corporations, 649, § 32; Annotation, 13 ALR2d 1282.
School District v. School District, supra, was a mandamus proceeding in which the defendant sought to raise the question of the legality of the creation or organization of the plaintiff school district. After stating the grounds upon which the defendant relied in support of such claim, the court, speaking through Mr. Justice Robert S. Bean, said (34 Or 99):
“These objections are, in our opinion, not available to the defendant, because the law is well established that the corporate existence of a school district, or other public or governmental corporation, created and organized under color of law, and in the exercise of its corporate powers, cannot be attacked, except in a direct proceeding instituted by the state for that purpose [citing cases]. Such organizations are the mere creatures and agents of the state, clothed with certain governmental powers, and their existence cannot be called in question in a mere collateral proceeding; ‘for,’ as said by Mr. Justice Campbell, in Clement v. Everest, 29 Mich. 20, ‘it would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation. Irregularities are common and unavoidable in the organization of *206such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons.’ ”
As to the distinction thus made between direct and collateral attack, this case is cited with approval in State v. Evans, 82 Or 46, 48, 160 P 140.
Bennett Trust Co. v. Sengstacken, supra, was a suit against the commissioners of a port to enjoin the issuance of bonds on a number of grounds, including the alleged invalidity of the statute authorizing the incorporation of ports and irregularities in the election. The court, after considering all the objections, said through Mr. Justice Burnett:
“To reach the result desired by the plaintiffs the court is asked to override the exercise of a political power by a co-ordinate branch of the government in appointing these officers, and, having done so, to go still further and overturn in this collateral proceeding the order and proclamation of the county court of Coos County, a tribunal specially authorized to declare the result of an election which it confessedly had the power and authority to order, and, finally, to determine that the defendants had no title to the positions of commissioners of the port. We do not conceive that the equitable power of the court extends so far. If the plaintiffs would determine the title to the positions held by the defendants, recourse can be had to the remedy provided by Section 866, L.O.L. [8-804, OCLA, the quo warranto statute] * * *."
The doctrine of this ease was reiterated in Tyree v. Crystal Dist. Imp. Co., supra. The court, again speaking through Mr. Justice Burnett, after a reference to the Bennett Trust Co. case, said:
“The principle was again established in the case of Splonskofsky v. Minto, lately decided by this *207court and reported in 62 Or. 560 (126 Pac. 15). In that case plaintiff tried to restrain the sheriff from collecting taxes which had been levied by a high school district. This basis of the complaint was that there were some supposed defects in the organization of the district; but the court held that, unless challenged by direct proceedings, the acts of a de facto corporation cannot be attacked collaterally by injunction [citing cases]. The governing principle is that, as long as the State permits a de facto corporation to carry on business as such an institution, its validity cannot be assailed in a collateral proceeding instituted by a private person.”
A suit by a private party to enjoin the collection of municipal taxes on the ground that the corporation was not lawfully organized is a collateral attack. Northern Pac. Ry. Co. v. J. Day Irr. Dist., supra, 155-163; Splonskofsky v. Minto, 62 Or 560, 570, 126 P 15; Bennett Trust Co. v. Sengstacken, supra; Tyree v. Crystal Dist. Imp. Co., supra; McQuillin, op cit., 599, § 3.52; Coe v. City of Los Angeles, 42 CalApp 479, 183 P 822; Crowl v. Board of Trustees, 109 CalApp 214, 292 P 985; Sage v. City of Plattsmouth, 48 Neb 558, 67 NW 455; Kuhn v. Port Townsend, 12 Wash 605, 41 P 923, 29 LRA 445, 50 Am St Rep 911; Frace v. Tacoma, 16 Wash 69, 47 P 219; Gardner v. Benn, 81 Kan 442, 105 P 435; Smith v. City of Emporia, 168 Kan 187, 211 P2d 101, 13 ALR2d 1272; Saylor v. Town of Wallins, 220 Ky 651, 295 SW 993; Biggerstaff v. City of Altus, 114 Okla 98, 243 P 751; Annotation, 13 ALR2d 1297. The cases from other jurisdictions all involved the validity of annexation proceedings, and in most of them a point of attack, as in this case, was that the plaintiff’s lands were not benefited by the annexation and, therefore, were wrongfully included.
*208Annexation of territory to a city is pro tanto a new organization of the municipality, and the rule with respect to collateral attack applies equally to it as to the case of an original incorporation. People ex rel. Quisenberry v. Ellis, 253 Ill 369, 97 NE 697, Ann Cas 1913 A 589; Skinner v. City of Phoenix, 54 Ariz 316, 95 P2d 424; Kuhn v. Port Townsend, supra; Smith v. City of Emporia, supra; Frace v. Tacoma, supra; Dixon v. City of Bremerton, 25 Wash2d 508, 171 P2d 243; 2 McQuillin, op. cit. 374, § 7.41. The cases from other jurisdictions cited under (1) and (2) support the foregoing. Indeed, the numerous cases throughout the country which deny the right of collateral attack upon an annexation because it seeks to question the validity of a de facto corporation necessarily proceed upon this view. As the court said in People ex rel. Quisenberry v. Ellis, supra, “An indispensable element of a municipal corporation is territory, and an annexation of territory is to that extent a new organization of the municipality.”
Again in Smith v. City of Emporia, supra, the court quoted from Chaves v. Atchison, 77 Kan 176, 93 P 624, as follows:
“* * * It is alleged, it is true, that the tract was not legally annexed, but there is undoubted jurisdiction in the mayor and council to make a legal annexation by the passage of an ordinance. An ordinance has been passed in fair form purporting to enlarge the boundaries of the city and making the addition in question a part of the city, and since that time the city has been exercising municipal authority over the addition and the people residing there.
“The validity of the corporate existence of the city as originally organized, or as reorganized by the extension of its boundaries, cannot be ques*209tioned by private parties. It has been held that the extension of corporate limits to include new territory, under statutory authority, is, in effect, a reorganization of the city; that the act of annexation involves the corporate integrity of the city, and is not open to collateral attack; and that its validity cannot be questioned by any party other than the state any more than can the validity of the original organization of the city. Topeka v. Dwyer, 70 Kan 244, 78 P 471, 3 Ann Cas 329. * * * We are therefore not warranted in considering whether the steps [taken to bring] the tract of land into the city were legal or not. The objections which the plaintiff makes can only be considered in a direct proceeding prosecuted at the instance of the state by the Attorney General or county attorney.”
The rule is thus stated in 62 CJS 174, § 65:
“Before completion of all steps for annexation of territory by a municipality, certiorari will lie at the instance of a citizen or taxpayer to secure annulment of irregular proceedings; but, after all steps for annexation have been taken and the municipality exercises dominion over the territory in at least a de facto capacity, certiorari is not the proper remedy, and the proceedings must then be tested by quo warranto.”
The foregoing rules are supported by what must be acknowledged to be the decided weight of authority. There are a few jurisdictions in which, as pointed out in the annotation in 13 ALB2d 1282 and 1289, there are opposing decisions. These take the position that a change of boundaries is on a lower plane than a corporate reorganization, or that the interest of a property owner, arising from threat of taxation, is sufficient to enable him to maintain the suit. In some states an appeal to the courts from an annexation judgment or ordinance is provided. See, e.g., City of Russell v. Ironton-Russell Bridge Co., 249 Ky 307, 60 SW2d *210628; Barbe v. City of Lake Charles, 216 La 871, 45 So2d 62; Forbes v. City of Meridian, 86 Miss 243, 38 So 676; Incorporated Town of North Judson v. Chicago & E. R. Co., 72 Ind App 550, 126 NE 323. Cases arising under such statutes are, of course, not in point. Further, some courts have held that they have power to relieve from taxation lands included within a municipality, but receiving no benefits therefrom, without, however, disturbing the municipal boundaries. That is the rule in Florida. City of Sarasota v. Skillin, 130 Fla 724, 178 So 837 (with strong dissent). If, however, it is a liquor license tax and not a tax on lands which is involved, it is held that the question can only be determined by quo warranto proceedings brought in the name of the attorney general. The Riviera Club v. The City of Ormond, 147 Fla 401, 2 So2d 721.
Both on principle and on the authority of our own decisions I think the court should not follow the minority view. We held in State ex rel. v. Port of Tillamook, 62 Or 332, 124 P 637, Ann Cas 1914C 483, that an action in the nature of quo warranto, brought in the name of the state under § 8-804, OCLA, is a proper proceeding to test the validity of the reorganization of a port by changing its boundaries so as to embrace new territory. We said in effect in State ex rel. v. School District No. 23, supra, that the rule against collateral attack upon the legality of a de facto corporation applies to the consolidation of school districts. And we approved in Northern Pac. Ry. Co. v. J. Day Irr. Dist., supra, the following statement of the law from 1 McQuillin, Municipal Corporations, § 151:
“A municipal corporation may exist de facto. * * The general doctrine has been thus broadly stated that a de facto corporation may legally perform every act which the same entity could perform, *211were it a corporation de jure. Its existence and acts are valid against all the world, even against the state except in direct proceedings to arrest its usurpation of power. Hence, where a reputed corporation is acting under forms of law unchallenged hy the state, the validity of its organization cannot be drawn in question by private parties, nor can its existence'be collaterally attacked.”
This rule was again recognized by this court in the recent case of State ex rel. v. School District No. 23, supra, which was a direct proceeding brought on behalf of the state to challenge the validity of consolidation of school districts. There the court, after stating that the defendant school district was “at least a de facto corporation” and that “A de facto municipal corporation, however, is not exempt from attack in quo warranto proceedings brought directly against it by the State or upon the relation of a private person,” held that from the facts before the court it was “clear that the relator, and not the state, is the interested party,” and that “The defendant school district, as a de facto corporation, can defend itself against any proceeding which he, as an individual, can maintain.”
Where, however, the act of annexation is absolutely void, because not authorized by law or under color of law, it is subject to attack by anyone, whenever and wherever its validity is questioned. Illustrative of the exception are Waco v. Higginson, (Tex Civ App) 226 SW 1084, in which the annexation was attempted under a charter provision in conflict with the state law; Barton v. Stuckey, 121 Okla 226, 248 P 592, where the ordinance annexing territory showed on its face that it was passed without the consent or application of the owners as required by statute; and People v. Hausen, 276 Ill 204, 114 NE 596, in which annexation *212was attempted pursuant to a charter provision which had been repealed by a general act. Other like cases are collected in the annotation in 13 ALR2d at page 1292. The rule is well stated by the United States District Court for the Western District of Oklahoma in Inland Development Co. v. Oklahoma City, Okla., 9 F Supp 96, as follows:
“* * * when sufficient facts exist to confer authority and jurisdiction on a municipality to annex territory, and there has been a substantial compliance with the provisions of the statute relating thereto, the validity of an ordinance annexing such territory cannot be attacked in a collateral proceeding by reason of defects, informalities, or irregularities in its passage. ’ ’
With one possible exception, all the cases cited in the opinion of the court as authority for the propriety of an injunction suit to test the validity of annexation proceedings are typical examples of the exception to the rule against collateral attack, and none of them in any way conflicts with that rule when it is properly understood. Thurber v. McMinnville, 63 Or 410, 128 P 43; Landess v. City of Cottage Grove, 64 Or 155, 129 P 537; and Couch v. Marvin, 67 Or 341, 136 P 6, are cases in which the municipalities attempted to annex territory without giving to the voters in the annexed territory an opportunity to approve or reject the proposal, contrary to the law of this state. In the similar case of Cooke v. Portland, 69 Or 572, 139 P 1095, the reasons for holding the annexation void were summarized by Mr. Justice Burnett at page 580 as follows:
“In brief, as against the plaintiff and others in like situation, the election was void because no notice of the same was given. On the part of the city it was void because the legal voters thereof *213had no opportunity to express their wishes on the subject. As to both parties it was void because, worked out to its final analysis, it amounted to an amendment of the charter of the City of Portland by those living entirely without its boundaries.”
With respect to the failure to give notice the court said:
“* * * The opportunity to be heard, which in its very nature involves previous notice, is essentially jurisdictional in its character where it is proposed to take the property of an individual or to visit upon it additional burdens. Without this, the action of the city council was analogous to taking the property involved without due process of law.”
Finally, in Spence v. Watson, 182 Or 283, 186 P2d 785, collateral attack was permitted in a case where the city had failed to follow a mandatory provision of the statute requiring a petition from fifteen per cent of the resident owners of real property in the area sought to be annexed before an election could be called. The court held that without such a petition no jurisdiction was conferred on the city council to act.
Some other Oregon cases should be noticed. Leach v. Port of Tillamook, 62 Or 345, 124 P 642, was a companion case to State ex rel. v. Port of Tillamook, supra. It was a suit by taxpayers to enjoin the collection of taxes by the Port of Tillamook on the same ground as that urged in the quo warranto action brought by the state, namely, that the reorganization of the port by taking in additional territory was void because there was no statute authorizing it. For this reason the plaintiffs were held entitled to prevail. This case is a clear illustration of the exception to the rule against collateral attack.
*214In Witham v. McNutt, 186 Or 668, 208 P2d 459, taxpayers brought a suit to enjoin public officials from certifying an annexation to the city of Eugene. Under the statute such certificate was required before the annexation would be effected. Various defects in the proceedings were claimed, but we held that they did not invalidate the reorganization. No question of the plaintiff’s right to sue was raised or discussed. However, it was clearly a case in which there was not even a de facto corporation, because the final essential step had not been taken, and the rule against collateral attack, therefore, was not applicable. See 74 CJS, Quo Warranto, 197, § 13; City of Anaheim v. City of Fullerton, 102 CalApp 395, 227 P2d 494.
In McBee v. Town of Springfield, 58 Or 459, 114 P 637, the claim made by the plaintiff, seeking to enjoin the collection of taxes, was that the law authorizing the annexation was void. This claim was not sustained, and an injunction was denied. Had the law been held invalid it would have been a proper case for collateral attack.
In Day v. Salem, 65 Or 114, 131 P 1028, Ann Cas 1915A 1011, a suit to enjoin collection of taxes, the grounds of objection were that part of the property annexed belonged to the state and that the votes cast in the territory to be annexed were cast by persons who were not residents. These objections were considered and held to be without merit. No question respecting the right of the plaintiff to maintain such a suit was raised in this case. And, even though the defects alleged, had they been established, were not such as to affect the jurisdiction of the municipality to carry out the annexation proceedings, the case cannot be regarded as a precedent sustaining the right of collateral attack.
*215So far as I have been able to ascertain, there is no Oregon case which, when the question was directly-presented and passed upon, holds that collateral attack by a private suitor on the validity of a de facto municipal corporation is permissible. Such an attack has only been allowed when the proceeding was wholly void, either because taken without authority of law or because some requirement of law essential to jurisdiction was omitted. In cases of this sort there is not even a de facto corporation; and the annexation, where that is involved, is simply a nullity.
If, for the purpose of the argument, it be assumed that this is a proceeding under the declaratory judgments act the rule is no different. That act is a valuable procedural device whose use I would not unduly restrict by construction. But I think that it was not intended to, and did not, repeal the policy steadily adhered to in this state and exemplified by the decisions of this court herein cited, that only the state in a direct proceeding can inquire into the validity of a de facto corporation. No doubt, as Professor Borchard indicates in a passage quoted in the opinion of the court, the declaratory judgment has “the advantage of escaping some of the restriction of quo warrantoBorehard, Declaratory Judgments 2d ed 362. But, in my opinion, it cannot and should not be employed by a private suitor in any case where collateral attack by a private suitor in some other form of proceeding, such as injunction, would not be countenanced. This is because it is of the essence of the doctrine that, where collateral attack is prohibited, only the state may challenge the validity of the corporation.
This view is not without support in the decisions. Skinner v. City of Phoenix, supra, affords a striking illustration of the line of demarcation which must be *216drawn. That was a declaratory judgment proceeding brought to determine the validity of an annexation. One ground of attack was that the statute under which the proceedings were taken was unconstitutional. As to this the court said: “If the statute is unconstitutional, all the proceedings taken thereunder are void for lack of jurisdiction.” Therefore, it would determine that question. Another objection was that certain provisions of the statute had not been complied with. As to this the court held that it was a collateral attack, that only the state could raise the question by quo warranto, and that the declaratory judgments act had not changed the situation.
In Birmingham, Bar Ass’n v. Phillips & Marsh, 239 Ala 650, 196 So 725, a declaratory judgment proceeding was brought to determine whether certain individuals and corporations engaged in the insurance business were unlawfully practicing law. An Alabama statute extended the use of an information in the nature of quo warranto to cases of intrusion into the legal profession. Referring to this statute the court said:
“Our statute has extended the right to institute such proceeding to a person giving security for costs of the action. But, in such case, the action is still prerogative in character, brought in the name of the State, on the relation of such person, who becomes a joint party with the State. The giving of security for the costs of the action is the condition upon which the relator is permitted to sue in the name of the State. Without such security, he usurps the authority of the State. Ex parte Talley, 238 Ala. 527, 192 So. 271.”
The court further said:
“As indicated, it is the policy of the law of Alabama that such proceedings should be had in the name of the State, and instituted in the manner designated by statute.
*217“To sanction a private action inter partes with the same objective would operate a virtual repeal of the quo warranto statute.
“We need not elaborate upon the reasons behind the public policy of requiring such proceedings by or in the name of the State. It is easy to visualize that no good could come to the legal profession or to the insurance world by private litigation wherein one party charges the other with invading his exclusive field of service, and the other counters with a charge of an attempt to invade and oust him from his lawful field of private enterprise.
“The Declaratory Judgment Law was never intended to strike down the public policy involved. Hence, there is no occasion to rely upon our line of cases denying its application where other adequate remedy is available.”
The question arose again in Gwynne v. Board of Education, 259 NY 191, 181 NE 353, a case involving the legality of a consolidation of school districts. The plaintiff brought a declaratory judgment action, and the court was called upon to discuss the question of whether the existence of the corporation was subject to collateral attack by an individual claiming to be aggrieved. It was held that the period of user had been too short to establish a de facto franchise, and the plaintiff’s right to maintain the proceeding was sustained.
All three of these decisions are authority for the proposition that the rule against collateral attack is in no way modified where a declaratory judgment proceeding, instead of some other form of suit such as injunction, is resorted to as the means of attack.
Nor is this view in any way inconsistent with School District No. 1 v. School District No. 45, 148 Or 554, 570, 37 P2d 873, and Tompkins v. District Boundary Board, 180 Or 339, 344, 177 P2d 416. In the former *218of these cases, the plaintiff school district attacked the validity of a consolidation with the defendant school district upon the ground that the only election held upon the question was in the latter district. The court held that this question could be determined in a declaratory judgment proceeding, and that the attempted consolidation was void. The omission to hold an election in one of the districts was said to be ‘‘ a jurisdictional defect. ’ ’ 148 Or 573. In the Tompkins case a declaratory judgment proceeding was brought, and the right to bring it affirmed, to determine whether a statute permitting the withdrawal of a school district from a union high school district was unconstitutional. In both of these cases collateral attack by injunction would have been permissible, for in neither had de facto status been attained, in the one case because of a jurisdictional defect and in the other because, where the law under which a corporation is attempted to be formed is unconstitutional, there can be no de facto corporation. Brown v. Webb, 60 Or 526, 530, 120 P 387; State v. Several Parcels of Land, 78 Neb 703, 111 NW 601; 8 Fletcher, Cyc Corp perm ed, §§ 3790, 3791.
As to Webb v. Clatsop Co. School Dist. 3, 188 Or 324, 215 P2d 368, the other declaratory judgment case relied on by the court, it is sufficient to say that it does not appear in the record that the consolidated school district which the plaintiffs challenged had actually achieved de facto status-—the consolidation election was held May 2, 1949, and the suit filed June 10, 1949—and in any event the question here debated was not raised or passed upon by the court.
In State ex rel. v. School District No. 23, supra, 179 Or 456, we said: “Municipal bodies organized in imperfect compliance with a statute under which they could have achieved a de jure status, but which exer*219eised in good faith the powers which they imperfectly secured, are recognized as de facto municipal corporations : McQuillin, Municipal Corporations, 2d ed., § 175, and 56 C.J., Schools and School Districts, p. 254, § 90.” Under this definition the reorganized city of Estacada is at least a corporation de facto. As to user of the corporate powers, the evidence discloses that the city has spent some $4,000 on the construction of a water main in the annexed territory and improved the road leading through it, and that it planned to extend the road as far as the plaintiff’s electric plant but discontinued the work when the suit was commenced.
We are not dealing here with a void annexation. What was done was done under a valid law, the council of the city had jurisdiction to submit the question to the voters (Ch 210, Oregon Laws 1949), and did submit it, and, so far as the issues in this case go, there are no defects or irregularities in the proceedings whatsoever. The only ground of complaint is that the council and the voters exercised their undoubted authority unreasonably by including in the annexed territory property which could derive no benefit from becoming a part of the municipality. This is not want of jurisdiction, but the erroneous exercise of jurisdiction. The attack here strikes “at the correctness or wisdom of a decision which the * * * [electorate] has made after jurisdiction is indubitably conferred.” State ex rel. v. Evans, 82 Or 56. That kind of question, I think, cannot be collaterally raised in a suit to enjoin the collection of taxes.
The John Day Irrigation District case, supra; State ex rel. v. Port of Tillamook, supra; State ex rel. v. School District No. 23, supra; and State v. Evans, supra, are all authority for the right of a private party to maintain as relator, on behalf of the state, an action *220in the nature of quo warranto directly brought to question the legality of a public corporation under § 8-804, OCLA. In such a case the relator is deemed a co-plaintiff with the state, § 8-806, OCLA; it is the duty of the prosecuting attorney to commence the action, and the private party must give satisfactory security to the state to indemnify it against the costs and expenses that may be incurred thereby, § 8-807, OCLA. See State ex rel. v. School District No. 9, 148 Or 273, 31 P2d 751, 36 P2d 179; State ex rel. v. Cook, 39 Or 377, 65 P 89; State ex rel. v. Stevens, 29 Or 464, 44 P 898. In my opinion, the remedy afforded by the statute is, in a ease like this, exclusive.
For the foregoing reasons I dissent.
Mr. Justice Bay authorizes me to say that he concurs in the foregoing opinion.