State v. Leatherman et al. Other matters of like nature tending to show the inconvenience and embarrassment of now holding the corporation void ab initio are urged; and it is also shown that the territory of the town is upon the Mississippi river and the common terminus of two railroads from the interior; that it has a population of from one to two thousand inhabitants, that many strangers are continually passing and that it requires a local police for the protection of property, and the security of the peace. Further that the ground had been platted into blocks, lots, streets, alleys, parks, &c., which plat had been recorded and sales and transfers had been made with reference thereto. It will be seen that two points only are presented: 1st. Was the corporation organized in accordance with law so as to acquire thereby a valid existence; and, 2nd, if not, has the acquiescence of the State for so long a period so affected her right to now question the franchise as to leave it within the power of this Court in the exercise of a sound discretion to refuse a relief fraught with consequences so disastrous to the long line of officers, and list of contractors and purchasers of property, who have been acting bona fide in obedience to and accordance with what they supposed to be a legitimate governing body. It goes without saying, that if this Court can find such discretion, it will, under the circumstances disclosed, exercise it to cure what has been done, and maintain the existing order of things. Whilst a moral wrong can never rest harmless, a mere mistake may become so insisted in healthful surroundings, and embedded under supervening rights, as to make its extraction as dangerous as useless. Upon the first point it is obvious that the Circuit Court and the petitioners in the proceedings for organization, mistook the tribunal. The power had been conferred upon the Circuit Court by the general incorporation act of 1868; State v. Leatherman et al. 2. MUNICIPAL COR but this act had been superseded by another covering the same ground passed April 9th, 1869. The latter act had not been published in the regular pamphlet acts of the session, but in a separate one commonly known to the profession in our State as McClure's Digest, which contained a collection of acts supposed to have been adopted by the Legislature, as a part of the general revision of the whole statutory law of the State. The greater part of them, however, though not all, were held invalid by the Courts (Vinsant admx. v. Knox, 27 Ark., 266). Amongst those sus-tained was the said act of 1869, vesting in the County Courts the jurisdiction to determine and pronounce upon creation of municipal corporations. At that time by the constitution then in force, the powers which the Legislature might vest in County Courts were not strictly limited, and the right to confer upon them this power cannot be seriously questioned. the On the third of April, 1873, County Courts were abolished, PORATIONS and Boards of County Supervisors appointed in their stead; tion to to which were transferred all the powers and duties of the create. County Courts. It is noticeable, however, that the Legis Jurisdic lature, afterwards, on the twenty-eighth of April, 1873, seems to have overlooked the former transfer of jurisdiction from the Circuit Courts, or at least to have still considered. it a very appropriate tribunal for kindred subjects. By act of that date, making provision for the annexation of territory to corporations, it was provided that application for the purpose should be made to the Circuit Courts. It is rather suggested to the Court, than contended, that this was a recognition of a remaining jurisdiction there, over the subject matter; which would still authorize those courts to receive and act upon applications for the creation of new corporations. We cannot so extend the language of the act, which regards annexations only. It seems anomalous, and State v. Leatherman et al. was, perhaps, passed under the mistaken impression that the act of 1868 was still in force; but we cannot, on that account, hold the act of April 9th as having been suspended. So the law stood when the order of the Circuit Court was made, establishing Arkansas City. There was no jurisdiction and the order was void. I find nothing to cure this in the Constitution of 1874, nor in subsequent legislation. The new general incorporation act of March 9th, 1875, sec. 5, adopted only such corporations as were existing at the time the new Constitution took effect, and which had been described or denominated" by some law then in force. This had not been. But it had been an existing de facto corporation all the time from 1873 till now; and many things had in good faith been done under it which it would be shocking now to undo. The disastrous consequences would not be confined to the case of Arkansas City. Municipal corporations throughout the State have become numerous. They are not only highly beneficial, but necessary agencies of good government. We can see how many of them may have been heretofore, or may be henceforth, put in operation under the same, or similar mistakes. To declare them all null, after long acquiescence on the part of the State would open a very Pandora's box of litigation, and produce incalculable hardship and confusion. This impels us to the broader field of enquiry, whether this court, in view of justice, equity, and the security of titles, can find, in recognized principles of law, sufficient warrant for refusing its aid in opening the flood-gates of such unmitigable evil. The practice of filing informations in the nature of a quo warranto existed at common law. But it was always on the relation of the Attorney General, to vindicate or protect the rights of the crown against usurpation and abuse of its State v. Leatherman et al. franchises. Never upon the relation of a private person to try his right to an office, until the statute of Anne, which made this proceeding subservient to the trial of private rights of this nature, and allowed informations by the Attorney General on the relation of individual citizens, for their benefit. The statute was never in force in this State. We have other appropriate proceedings to determine, between individuals, the right to hold office. The course of judicial decisions under the act in England, are however worthy of note, being pregnant examples of their tendency to prevent the abuse of the proceedings, after long acquiescence on the part of those assuming to have been aggrieved. Originally, upon the passage of the act, the granting of these informations was matter of course; and when once filed, by leave, the courts felt bound to determine the right by strict law regardless of consequences. This afterwards ceased to be the practice in case of private relators. The granting of leave was made to depend on the sound discretion of the court, which it came to exercise upon the particular circumstances of each case. Although, at common law, the time in which the right to exercise an office might be impeached, was indefinite, the person against whom the remedy, under the act of Anne, was sought, might show that his right had been acquiesced in for a long time. analogy to the statute of limitations the time was at first fixed at twenty years. Afterwards it was reduced to six. See cases collected and cited in Bacon's Abridgement Title "Informations" (D). See also High on Extraordinary Remedies Title "Quo Warranto" (passim). I do not find, however, that any English cases go to the extent of holding that this applies to other cases than those of private relators seeking personal rights; or that the doctrine of "nullum tempus occurrit regi" has ever been there By State v. Leatherman et al. ignored in case of such applications, in behalf of the sovereign, as the Attorney General might have made before the act of Anne. The discretion of the court, indeed, although not used at first, is based upon the language of the act, which expressly provides that the relations therein allowed must be filed by leave of court. But times change, and the exigencies of society and good government change with them. The great multitude of new municipal corporations continually springing up in the American states, their convenience, and indeed absolute necessity, as agencies of government, and the danger of the impending evils to which I have alluded, have induced several American courts and distinguished jurists to go a step further, and apply this discretion to proceedings on the part of the State herself, without any private relator. The step seems to have been impelled ex necessitate rei, and in truth implies sounder views, and advanced ideas of the nature of sovereignty, as resting in the State for the public good, and not for the distraction of business, and confusion of rights. The case of Jameson v. The People, 16 Illinois, p. 257, was a quo warranto to test the validity of a municipal corporation, which had not been organized in accordance with aw. The corporation had gone into operation and had been named in a subsequent legislative act, giving it certain powers. This was held to have cured the irregularity, but the opinion of the court goes upon still broader grounds. SKINNER, J., said: "If there is no such corporation, all acts done under the supposed corporate powers, are mere nullities, and no liabilities can exist by reason of contracts made in the corporate name. Were we to hold, after this acquiescence of the public, and these recognitions of the Legislature, that the town remains unincorporated, on account of some defect in its original organiza |