State ex rel. Green Bay G. & E. Co. v. Minahan Bldg. Co. 141 Wis. 400. business portion of said city and to furnish to the citizens of Green Bay electric current for light and power purposes, hot water, steam, and air; that a copy of the proposed ordinance was filed with the city clerk; that such application was not published as required by law and was never published in whole or in part; that after the filing of said application and copy of ordinance with the city clerk the council changed and amended the same, and as so amended passed an ordinance granting certain rights to the defendant; that said ordinance was approved by the then mayor of the city of Green Bay, and thereafter the defendant filed with the city clerk its written acceptance of said pretended ordinance and the pretended franchise purporting to be granted thereby; that thereafter defendant installed in the basement of its office and store building an electric plant and equipments for the generation of electricity for light, power, and heat, and a plant and equipments for the production and distribution of steam, air, hot water, and other products, and began to excavate and erect in the streets trenches, conduits, wires, poles, pipes, and appliances; that defendant owns said franchise purported to be granted by said pretended ordinance, and claims to have the right and authority attempted to be conferred upon it thereby, and is using and occupying a portion of the streets and alleys thereunder; that the stockholders of defendant are the Minahan family, one of whom at the time of signing the ordinance was the mayor of the city of Green Bay and was directly and indirectly interested in the defendant company and its property, whereby said pretended ordinance and franchise was and is null and void; that the relator applied to the attorney general to bring this action against the defendant to oust it of its pretended and alleged powers and privileges; that the attorney general refused; and that the relator gave bond to the state of Wisconsin to protect it against damages and costs by reason of bringing this action, which bond was approved by the attorney general. The complaint sets out at length other State ex rel. Green Bay G. & E. Co. v. Minahan Bldg. Co. 141 Wis. 400. matters not material to this appeal, and concludes with the following prayer: "Wherefore plaintiff prays that defendant be required to show cause by what authority it holds and exercises said pretended ordinance and franchise and the rights and privileges purported and attempted to be conferred thereby upon it, and that, in default of so showing cause, defendant be adjudged guilty of unlawfully holding and exercising the same, and that it be ousted and excluded therefrom, and that plaintiff recover the costs and disbursements of this action. For the appellant there were briefs by Greene, Fairchild, North & Parker, and oral argument by B. L. Parker. For the respondent there was a brief by Minahan & Mina han, and oral argument by V. I. Minahan. The following opinion was filed November 12, 1909: KERWIN, J. It appears from the opinion of the trial judge sustaining the demurrer that it was sustained on the ground that the complaint does not state that the defendant is a corporation-only that it is a "pretended corporation,"—and that no other attack was made upon the complaint in the court below. The contention of the appellant here is that, since the facts are stated from which the court can determine that the defendant is a corporation, the corporate existence is sufficiently alleged to meet the calls of sec. 3205, Stats. (1898), which provides that in an action by or against a corporation the complaint must aver that the plaintiff or defendant, as the case may be, is a corporation, and, if organized under the laws of this state, that fact must be averred, and, if not so incorporated, an averment that it is a foreign corporation. In Carpenter v. McCord L. Co. 107 Wis. 611, 83 N. W. 764, this court sustained a demurrer to the complaint because of lack of such averment and said: "That the appellants are intended to be sued as corporations sufficiently appears from their names. Brauser v. New England F. Ins. Co. 21 Wis. 506. That being so, the complaint fails to comply with the requirements of the statute.” State ex rel. Green Bay G. & E. Co. v. Minahan Bldg. Co. 141 Wis. 400. We do not find it necessary to determine whether a statement of facts showing corporate existence would not be a sufficient compliance with the statute. Here we think the pleading falls short of direct averment of all the facts necessary to show corporate existence. On the contrary, the allegation that the defendant is a "pretended corporation" at least raises the implication that it is not a corporation. It is difficult to see how the defendant could be a "pretended corporation" and at the same time a real corporation. In other words, the allegation that defendant is a pretended corporation at least implies that it is not the thing it pretends to be. Moreover, the complaint is wanting in full statement of all the material allegations necessary to show the creation of a valid corporation, and especially in face of the positive allegation that it is a "pretended corporation." Besides, there is no allegation that the articles of incorporation or a copy thereof duly certified as required by subd. 7, sec. 1772, Stats. (1898), was filed with the secretary of state, or that a verified copy and certificate of the secretary of state showing date when such articles were filed and accepted by the secretary of state, with the date, was left or filed with the register of deeds of the county in which said corporation is located, or that any certificate of incorporation or charter was ever issued, but merely that the defendant was acting under the "pretended authority purported to be conferred by its said articles of incorporation, and by its corporate charter defendant has assumed to act as a corporation duly organized." It is clear from the allegations of the complaint that the plaintiff has not only failed to aver that defendant is a corporation, but has failed to allege all the facts from which the court could find that it is a corporation, and has directly alleged that it is only a pretended corporation, so on no theory has the statute requiring corporate existence to be alleged been complied with. It was necessary for plaintiff to show that some person natural or artificial was before the court as de State ex rel. Green Bay G. & E. Co. v. Minshan Bldg. Co. 141 Wis. 400. fendant. No natural person has been sued and no artificial person, because the defendant does not appear to be a corporation-only a pretended corporation. We do not regard it necessary to discuss cases cited by appellant from other jurisdictions upon the question, because we agree with the court below that the case is ruled by our statute referred to and the decision of this court under it. Counsel, however, cite to our attention State ex rel. Weinsheim v. Leischer, 117 Wis. 475, 94 N. W. 299, as supporting their contention. But in that case it will be seen that the distinction is clearly made between an action brought against a legal corporation which has usurped franchises which it does not possess, and a case where the alleged corporation is not one in fact and the object of the action is to procure a judgment declaring it to have no legal existence. It is clear from the complaint here that the action is not brought to procure a judgment declaring that defendant has no legal existence, but because it holds and exercises a pretended ordinance and franchise and the rights attempted to be conferred. Secs. 3466, 3240, 3241, Stats. (1898); Independent O. of F. v. United O. of F. 94 Wis. 234, 68 N. W. 1011. Counsel for appellant in their brief state that the action is brought under sec. 3466, Stats. (1898). It was further argued in this court that the action was not well brought because the relator is not a "private party" within the meaning of sec. 3466, Stats. (1898). While the relator may be said to be in its nature quasi-public because subject to supervision by the public, it is nevertheless private as regards its property rights. Eastern Wis. R. & L. Co. v. Hackett, 135 Wis. 464, 115 N. W. 376, 1136, 1139; State v. Milwaukee E. R. & L. Co. 136 Wis. 179, 116 N. W. 900; State ex rel. Vilter Mfg. Co. v. M., B. & L. G. R. Co. 116 Wis. 142, 92 N. W. 546; State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145, 121 N. W. 919; Interstate Comm. Comm'n v. Chicago G. W. R. Co. 209 U. S. 108, 28 Sup. Ct. 493. State ex rel. Green Bay G. & E. Co. v. Minahan Bldg. Co. 141 Wis. 400. We think the plaintiff is a private party under sec. 3466, Stats. (1898), but that the complaint states no cause of action, and therefore the order below must be affirmed. By the Court.-Order appealed from is affirmed. MARSHALL, J. (dissenting). The complaint should be viewed in the light of that liberal rule, so beneficial in the administration of justice, and which distinguishes our Code system from that of the common law with its multitude of obstructing technicalities. By such rule, if the complaint "in any portion of it, or to any extent, presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially these facts may be presented, or however defective, uncertain, or redundant may be the mode of their statement." Morse v. Gilman, 16 Wis. 504. It "should have the support of the most liberal construction which its language will reasonably bear, and all reasonable inferences that can be drawn therefrom." "That effect should be given to all allegations of a pleading which will support rather than defeat it, if that can be done without adding thereto, by way of construction, material words not necessarily implied, or giving to the language used a meaning that cannot be reasonably attributed to it." "Every pleading is to be so construed as to support the purposes of the pleader to state a cause of action, if the facts essential thereto can be found expressly stated or alleged by reasonable inference. . . ." Emerson v. Nash, 124 Wis. 369, 380, 381, 102 N. W. 921, 926. Again, "if sufficiency can be. discovered, reasonably, by judicial construction of the language used and by reasonable inferences from general allegations," that is sufficient. Miles v. Mut. R. F. L. Asso. 108 Wis. 421, 427, 84 N. W. 159, 162. The foregoing are but a few of the many significant illustrations of the great, and by no means too great, length to which the Code rule has been extended. It is no longer suffi |