Bush v. State, ex rel.-187 Ind. 339.

junction "or" in connecting the words specifying the various improvements authorized by §8233b Burns 1914, Acts 1913 p. 433, to require the formation of several corporations to construct the different parts of one general project of reclamation, nor to require separate contracts for each class of work combining to constitute the improvement as a whole; and the formation of a corporation for the purpose of constructing all of the various improvements enumerated in §1 of the act is valid, and not objectionable on the theory that its purpose is to engage in separate and distinct lines of business. (Williams v. Citizens, etc., Co., 25 Ind. App. 351, and Burke v. Mead, 159 Ind. 252, distinguished.) p. 349. 8. DRAINS.-Associations.-Articles.-Signing and Acknowledging.-Articles of association drawn under §8233b Burns 1914, Acts 1913 p. 433, relative to the formation of associations to drain and reclaim wet lands, were not invalidated on the grounds that two signatures thereto were not acknowledged, where the articles were duly signed and acknowledged by each of the original members and the two signatures were those of interested persons who became members after the execution of the articles and the election of directors in accordance with §5 of the act, which provides that owners of land affected may become members by signing the articles after the filing and recording thereof. p. 351.

9. DRAINS.-Associations.-Articles-Objects.-Articles for the formation of a corporation to reclaim wet and overflowed lands, under §8233b et seq. Burns 1914, Acts 1913 p. 433, were not invalidated on the grounds that they contained no definite description of the work to be undertaken, in view of §12 of the act, which provides that the directors, before commencing the work, shall cause to be made a careful survey, plans and specifications of the proposed work, etc., as this provision was intended to obviate the necessity of stating a particular description in the articles. (West v. Bullskin, etc., Ditching Co., 32 Ind. 138; O'Reiley v. Kankakee, etc., Draining Co., 32 Ind. 169; Skelton Creek Draining Co. v. Mauck, 43 Ind. 30; Crawford v. Prairie Creek Ditching Assn., 44 Ind. 361, distinguished.) p. 351.

From Vigo Circuit Court; Charles L. Pulliam, Judge.

Action by the State of Indiana, on the relation of Richard Wernecke, against Ernest G. Bush and others. From an adverse judgment, the defendants appeal. Reversed.

Bush v. State, ex rel.-187 Ind. 339.

Hutchison & Burns and Duvall & Whittaker, for appellants.

William Horsley, Finley A. McNutt and Harry S. Wallace, for appellee.

LAIRY, J.-This is an action of quo warranto brought by the State of Indiana, on the relation of the prosecuting attorney of the Forty-Third judicial circuit of Indiana, against appellants. The material allegations of the complaint are as follows: "That said defendants have been for more than two years last past, and still are, usurping the franchise of being a corporation by the name and style of the Reservoir Improvement Company in the counties of Vigo and Clay in the State of Indiana; and that by that name are pleading and being impleaded, contracting and being contracted with, and otherwise acting as a corporation within Vigo and Clay counties, in the State of Indiana, without being legally incorporated; that as such pretended corporation said defendants as an association of persons, have acted within the said counties and state as a corporation without being legally incorporated. The relator would give the court to understand and be informed that said defendants have never been and are not now legally incorporated, and during a period of more than two years last past have so usurped the franchise of being a corporation as aforesaid. Wherefore, this relator asks the court that said defendants be required to show by what right they claim to have and enjoy the privileges of such corporation."

* * *

Appellants' motion for an order requiring appellee to make the complaint more specific was overruled, and thereafter appellants filed a joint and several answer, to which a demurrer was addressed by appellee. The court sustained this demurrer and, upon appellants' re

Bush v. State, ex rel.-187 Ind. 339.

fusing to plead further, judgment was rendered against them.

Appellants assert that the court erred in overruling their motion for an order requiring the complaint to be made more specific. It is conceded that the complaint is sufficient to withstand a demurrer under the authority of Smith v. State, ex rel. (1895), 140 Ind. 343, 39 N. E. 1060; but it is asserted that the material allegations do not tender any certain and definite issue by reason of the general and indefinite character of the language employed. It is alleged that the defendants had been for more than two years, and at the time the complaint was filed still were, usurping the franchise of being a corporation; and, as such, that they were pleading and being impleaded, contracting and being contracted with, in the corporate name they have assumed, and were otherwise acting as a corporation without being legally incorporated. By the motion it was asked that the plaintiff be required to state in the complaint the facts relied on as showing that the corporation was not legally organized and incorporated, and showing that it was usurping the powers, rights and franchises of a corporation without being legally incorporated.

The common-law writ of quo warranto was in the nature of a writ of right against him who claimed or usurped any office, franchise or liberty to inquire by what authority he supported his claim in order to determine the right. 3 Blackstone's Commentaries (Book 3) ch. XVII. The procedure under the writ was civil and not criminal in its nature, being prosecuted by the king through his attorney-general without any relator to try the mere civil right to some office, liberty, or franchise which was being claimed or exercised by some person in violation of the prerogative right of the sovereign. The writ soon fell into disuse in England and was suc

Bush v. State, ex rel.-187 Ind. 339.

ceeded by the information in the nature of quo warranto, which was criminal in its nature, involving a fine or imprisonment in addition to a judgment of ouster. The proceeding by information in the nature of quo warranto lost its criminal character, in everything except form, long before the American Revolution, and was applied to enforcing civil rights, seizing franchises and ousting the wrongful possessor, the fine being merely nominal.

In proceedings under the ancient writ of quo warranto, which were brought by the crown through its attorney-general, no great particularity in pleading was required, but the allegations employed were of the most general character. The purpose of the writ was to call upon the defendant to show the authority by which he exercised a corporate franchise or assumed the duties of a public office, and the same was true as to informations in the nature of quo warranto. It was not the purpose of such writ of information to tender an issue of fact, but to call upon the defendant in the most general terms to set up the facts showing by what warrant or authority the privilege, franchise or office was held or exercised. In such proceedings it was sufficient for the state to allege that the defendant intruded into a certain office without authority of law, or that he usurped the powers, privileges and franchises of a corporation without legal warrant or authority so to do. The defendant could not traverse an information of this character by any plea to general issue; he must, by his plea, either disclaim or justify. He must disclaim all right to the office or franchise and deny the usurpation, or he must specifically allege facts which show a legal right to discharge the duties of the office, or to exercise the privileges and franchises of a corporation, as the case might be. The rules of pleading as thus announced still obtain except in states where by statute the pro

Bush v. State, ex rel.-187 Ind. 339.

ceedings have been assimilated to those in ordinary civil actions. 17 Ency. Pl. and Pr. 458; State, ex rel. V. Messmore (1861), 14 Wis. 125; State, ex rel. v. Dahl (1886), 65 Wis. 510, 518, 27 N. W. 343; Boyer v. Teague (1890), 106 N. C. 577, 618, 11 S. E. 665, 19 Am. St. 547.

In this state the early statutes provided for a proceeding by information in the nature of quo warranto

(R. S. 1843 p. 937), but in 1852 the Civil Code 1. was adopted, by which a remedy by civil action was substituted for the information in the nature of quo warranto as it had previously existed. Chapter 44 of the Code on the subject of informations was reenacted in 1881, and still remains in force without change. Section 816 of the Code of 1881 is as follows: "The information shall consist of a plain statement of the facts which constitute the ground of the proceeding, addressed to the court." §1190 Burns 1914, §1133 R. S. 1881. Section 818 of the Civil Code of 1881 is as follows: "Whenever an information is filed, a summons shall issue thereon; which shall be served and returned as in other actions. The defendant shall appear and answer, or suffer default, and subsequent proceedings be had as in other cases." §1192 Burns 1914, §1135 R. S. 1881. Section 55 of the Code of 1881 provides that the summons shall be issued by the clerk, under the seal of the court, and directed to the sheriff, and shall notify the defendant of the action commenced, the parties thereto and the court where pending. §317 Burns 1914, §314 R. S. 1881. Section 84 of the Code, being §338 R. S. 1881, §343 Burns 1914, provides: "The complaint shall contain-* A statement of

the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."