State ex rel. Prosecuting Attorney v. Union Savings Bank

Fullerton, J.

W. S. Gilbert, a citizen and taxpayer of the county of Spokane, filed a petition in the superior court of that county praying for an order against the prosecuting attorney of Spokane county, directing that officer to institute, in his official capacity, the necessary proceedings to inquire by what authority the Union Savings Bank, a corporation, organized under the laws of this state, was exercising, or was about to exercise, the functions of a banking corporation. On the filing of the petition, the court made an order requiring the prosecuting attorney to appear before it on a day named and show cause, if any he had, why he should not institute the proceedings prayed for in the petition; directing, at the same time, that a copy of the order, together with a copy of the petition, be forthwith served upon the prosecuting attorney. On the day named in the order, the prosecuting attorney appeared and made answer to the petition, setting out the reasons why he had refused to institute the proceedings requested. The court, after a hearing had thereon, adjudged the answer insufficient, and entered an order directing the prosecuting attorney to institute proceedings in the nature of quo warranto against the corporation, substantially as prayed for in the petition. From this order, the prosecuting attorney appealed.

This is a motion to dismiss the appeal. It is contended that the order is not final; that it is but a step in the proceeding of quo warranto instituted to inquire into the conduct of the corporation named.

But while the applicant has entitled his proceeding as if it were a proceeding instituted by the prosecuting attorney against the Union Savings Bank, it is plain that it is not such a proceeding. The only person authorized to institute such a proceeding is the prosecuting attorney, and that officer not only has not instituted such a proceeding, but has refused, and is now refusing, to institute it. This proceeding is, therefore, in no sense a proceeding against the bank. On the contrary, it is a proceeding, instituted by a person representing the interest of the public, to compel the prosecuting attorney to perform a service such person conceives it to be the duty of the prosecuting attorney to perform. It is a contest between the applicant and the prosecuting attorney, in which the applicant is the relator and the prosecuting attorney the defendant, and was terminated finally by the order of the court directing that quo warranto proceedings be instituted. In substance and effect, the proceeding is one to compel the performance of an act which it is alleged the law especially enjoins upon the prosecuting attorney as a duty resulting from his office; in other words, it is a proceeding in mandamus.

Being a proceeding in mandamus, and being concluded by the final order entered therein, it is appealable by the express provision of Rem. & Bal. Code, § 1033 (P. C. 81 § 1793).

The motion to dismiss is denied.

Morris, C. J., Main, Ellis, and Parker, JJ., concur.