People v. Reclamation District No. 136

GAROUTTE, J. This is a proceeding by quo warranto to exclude the defendants from all corporate rights. The demurrer to the complaint was overruled, and answer filed. When the case was called for trial defendants moved for judgment on the pleadings, on the ground that the complaint did not state facts sufficient to constitute a cause of action, “for the reason that the pleading only averred that the defendants were usurping the functions of a corporation, there being no allegation of the particular circumstances constituting such usurpation.” The motion for a nonsuit was denied. Judgment passed for plaintiff, and defendants now appeal from that judgment, and also from the order denying their motion for a new trial.

It is insisted that the complaint is fatally defective in not alleging specifically the acts constituting the usurpation. Many eases are cited to support this contention, but a sufficient answer to them is found in the fact that they are not eases of quo warranto. In a proceeding prosecuted by the state, of the character here inaugurated, it is sufficient to allege the ultimate fact, namely, that the defendants are exercising the franchise without authority of law. (People ex rel. Samuell v. Cooper, 139 Ill. 461; People ex rel. Dickson v. Clayton, 4 Utah, 431, and cases there cited.)

The trial court found that the board of supervisors had no jurisdiction to form the district, and that the district was not legally organized. The most serious objection to the validity of the organization of the district rests upon the publication of the petition of the landowners for its formation. By section 30 of the act of the legislature (Stats. 1867-68, p. 507) the petition is required to be published “for four weeks next preceding the hearing thereof in some newspaper published in the county.” As to the character of the publication made in this case, the affidavit of the printer is as follows: “That a true copy of the annexed petition (which is made part of this affidavit) has been published in said paper (the Sacramento ‘Daily Record’) once a week for four weeks, commencing the fifth day of December, 1871, to and including the second day of January, 1873.” Do the facts set out in this affidavit fill the measure required by the statute? In other words, was the petition published four ¡weeks next preceding the hearing thereof? The hearing of the [524]petition was fixed for January 3, 1872. Giving the affidavit of the printer a fairly liberal interpretation it appeared therefrom that the petition was published the fifth, twelfth, nineteenth, and twenty-sixth days of December, and January 2d. If such a publication had been had in a weekly newspaper published ip the county it would have come strictly within the requirements of the statute; but, Does the fact that the publication is had in a daily newspaper once a week for the required time satisfy the law? It must he borne in mind that the number of publications is not specified by the statute. There is no direct adjudication in this state upon the question, but upon examination of the authorities of other states we find many cases holding publications of notice in daily papers once a week for the time prescribed by the notice a sufficient compliance with the law. It is unnecessary to quote from these cases. It is sufficient to say that they squarely meet the point and support the validity of such a publication. We simply cite them: Wing v. Dodge, 80 Ill. 564; Wood v. Knapp, 100 N. Y. 109; Thurston v. Miller, 19 R. I. 358; Matter of Harris, Petitioner, 14 R. I. 637; Bowen v. Argall, 24 Wend. 501; Alexander v. Alexander, 26 Neb. 68; Dayton v. Mintzer, 22 Minn. 393; Brewer v. Springfield, 97 Mass. 152; Frothingham v. March, 1 Mass. 247. To support plaintiff’s position the case of Hellman v. Merz, 112 Cal. 661, is relied upon, but that case fails to reach the mark. The reasons for the conclusion there declared are not as full and complete as they could well have been stated. The conclusion nevertheless in that case is correct and absolutely sound. The notice there required was the probate notice provided for by section 1549 of the Code of Civil Procedure. The subsequent section, 1795, declares in. effect that the notices provided for by section 1549 must be published as often as the paper is published during the time over which the notice is extended, unless otherwise directed by the court or judge. This mandatory requirement equally applies to both weekly and daily papers. In the Heilman case the court or judge did not otherwise direct the publication of the notice, and, it being published in a daily paper, should have been published every day that the paper was issued prior to the day of sale. But such publication was not had, and therein consisted its invalidity. In this case we conclude the notice of publication was sufficient.