facts were accessible to Byers on the exami-ing, upon which question no opinion need be nation of the books of the company, at that expressed. It is shown that the only defendtime in the principal office of the company at ants claiming the offices were legal officers Georgetown. The Grand River Bridge Com- prior to and up to the time of the meeting pany was not made a party to the action. held upon January 17, 1885, and that they Upon the final hearing, the court below en- have been managing the affairs of the corpotered judgment dismissing the action; and ration since its creation. It is, therefore, to reverse this judgment the case is brought necessary for the plaintiffs to show affirmahere upon error. tively that these defendants lost the right to hold such offices, as the result of some action taken at that or a subsequent meeting; and we are not informed that any meeting whatever was held after the meeting held in 1885, although the action was not commenced for more than two years thereafter. At this meeting the defendants received votes repre W. T. Hughes, for plaintiffs in error. R. H. Gilmore, for defendants in error Rollins, Gaskill, Gooch, and Fisher. L. O. Rockwell, for defendant in error Clark. stock after the increase to $7,000, but also a majority of the original $3,000. It is apparent, therefore, if the plaintiffs' claim be correct, that the capital stock had never been legally increased above the amount fixed by the original articles of incorporation, the defendants were nevertheless legally re-elected, having received votes representing a majority of such stock, while, if $7,000 be taken as the total amount of stock, it is shown that they also received votes representing a majority of said amount. HAYT, J., (after stating the facts as above.) This action was brought in the court below, to compel an accounting by the de-senting, not only a majority of the capital fendants, as officers of the Grand River Ditch Company, to oust the defendants from office, and to obtain a decree for the cancellation of all the stock held by the defendants, or either of them. If the defendants have assets in their possession belonging to the corporation, the corporation, and not the stockholders, is the proper party to bring an action to compel them to account for such assets. It is well settled that whenever the officers of a corporation misappropriate the corporate funds, or are guilty of any kind of wrongful dealing with the corporate property, the cor- The only remaining question relates to the poration is primarily interested, and can plaintiffs' right to have the stock held by the alone seek redress, unless it is made to ap-defendants canceled. It appears that the cost pear that it is necessary for the stockholders of the bridge was estimated at $3,000, and to bring the action in order to prevent a com- that the capital stock was originally limited plete failure of justice; and, to bring a case to this amount, while it is shown that the within the exception, it must be made to ap- actual cost of the bridge was something over pear that the corporation refuses to bring a $7,000. Consequently, it became necessary suit, or permit the same to be brought, in the to provide in some way for this difference, corporate name, after reasonable application and the stockholders undertook to do it by inhas been made to it for that purpose; or facts creasing the capital stock. Nothing is shown must be alleged, showing that it would be to indicate mala fides on the part of any one useless to make such an application, as when connected with the transaction; on the conthe wrong-doing defendants constitute the trary, it appears that the entire stock was board of directors of the company, or a ma-disposed of at par, and the proceeds used to jority of them, or that the directors, or a ma-pay the expenses incident to the construction jority of them, are still under the control of of the bridge, the only irregularity in the enthe defendants charged with the wrongful tire proceeding consisting in the failure of conduct, so that it is apparent that a demand the parties to have the articles of incorporawould be unavailing; and in every case it is tion amended so as to permit the increased indispensably necessary that the corporation issue of stock. Plaintiffs are asking for the should be made a party defendant, for the cancellation of all the stock held by the dereason that the relief, when granted, belongs fendants, whether the same be of the original to the corporation, and not to the stockholder, or subsequent issue, to the end that there although, of course, he may be indirectly ben- may be no stock left outstanding except that efited by the result of the action. 3 Pom. which is held by the plaintiffs. It is shown, Eq. Jur. § 1088 et seq.; Dodge v. Woolsey, 18 however, that the defendants have at all How. 331, 345; Davenport v. Dows, 18 Wall. times held a majority of the original capital 626; Jackson v. Ludeling, 21 Wall. 616; stock; and it is admitted that the issue of Newby v. Railroad Co., 1 Sawy. 63; Heath this stock was kept within the limit fixed in v. Railroad Co., 8 Blatchf. 347. The corpo- the articles of incorporation; and certainly a ration known as the Grand River Bridge Company not having been made a party plaintiff or defendant, the trial court correctly decided that an accounting could not be ordered. Neither were the plaintiffs entitled to a decree ousting the defendants from office under the agreed statement of facts, even if it be conceded that the title to their offices could be determined in this proceed subsequent issue, although unauthorized, did not invalidate this stock, and no reason for the cancellation thereof has been shown. Should it be admitted that the action of the defendants in increasing the capital stock beyond the amount fixed in the articles of incorporation was irregular and illegal, and that in a proper case, with proper parties before the court, the excess of stock might be held for cancellation, such a decree is upon this appeal have been passed upon by not sought in this case, and, if entered, this court in the case of Byers v. Rollins, would be of no benefit to the plaintiffs, as ante, 894, (decided at the present term,) and they are the owners of a large part of this therefore will not here be reviewed. This excess, and, before such a decree could be action was brought by the Byers board of diproperly entered, plaintiffs would be required rectors, in the name of the company, for the to surrender all such stock held by them. If purpose of compelling an accounting, by the Cushman falsely represented the certificate defendant, of his receipts and expenditures sold to Byers, as covering all the capital as president and managing officer of the plainstock of the company, this would not change tiff corporation. No question having been the result, as it does not appear that the de- raised as to the authority of these directors fendants were in any way responsible for to bring the action in the name of the corposuch false representations; and it does ap-ration, the court below, after hearing evipear that, at the time of the purchase, it was dence, entered an interlocutory decree for an well known that the defendants Rollins, Gas- accounting, and appointed a referee to make kill, and Gooch were then the managers and the same. After taking all the testimony directors of the company, and had been such offered by the respective parties, this referee managers and directors since its organiza- made a report to the court in which it is tion, and that Byers purchased well knowing stated, among other things, "that on Janusuch facts; and the further fact that, under ary 10, 1887, there was due defendant, John the law, none but stockholders could be di- Q. A. Rollins, from plaintiff, $368.25; and rectors of a company incorporated under the that there was due defendant, Rollins, $1,laws of this state. Byers, with this knowl-133.25 on May 4, 1885, which includes the edge, purchased a mere certificate for stock, which was not under the seal of the company and was not signed by its president. Here was sufficient, we think, to have put a prudent man upon inquiry; and reasonable inquiry in this case would undoubtedly have disclosed the true condition of affairs as shown upon the books of the corporation. Byers, not having made such inquiry, must be treated the same as though he purchased with full knowledge of the facts. Wade, Notice, § 11. From whatever aspect the case is viewed, we must hold that the plaintiffs were not entitled to a decree of cancellation. Finding no error in the proceedings of the trial court, the judgment must be affirmed. Affirmed. (13 Colo. 4) GRAND RIVER BRIDGE Co. v. ROLLINS. (Supreme Court of Colorado. May 24, 1889.) CORPORATIONS-ACCOUNTING BY OFFICERS. 1. In an action, by a bridge company, to compel an accounting by its president and managing officer, the referee allowed defendant credit for work done and materials furnished and money advanced by him in the construction of the bridge, after the articles had been executed and filed with the recorder of the county, but before the articles were filed in the office of the secretary of state. Held. that although, in the absence of such filing, plaintiff did not become a corporation de jure, it was a corporation de facto, and its corporate existence could not be questioned by plaintiff in such collateral proceeding. 2. After plaintiff's corporate capacity became complete, it passed upon and allowed defendant's account, embracing the said items. Held that, even if this had not been done, as plaintiff had accepted and appropriated the fruits of defendant's labor and money, the law would imply a promise to pay therefor, and said items were properly allowed. Appeal from district court, Clear Creek county. L. B. France and W. T. Hughes, for appellant. R. H. Gilmore and C. C. Post, for appellee. balance due on January 10, 1887." Exceptions having been filed to the referee's report, and overruled, a judgment was thereafter entered in accordance with the findings of the referee, and the case brought here for review by appeal. It is contended by appellant that the referee erred in giving the defendant credit for the amount found to have been due him upon the 10th day of January, 1887. The evidence shows that this amount was for work done, material furnished, and money advanced in the construction of the bridge for the company after the articles of incorporation had been legally executed and filed with the recorder of Grand county, but before these articles were filed in the office of the secretary of state. Although, in the absence of such filing, the plaintiff did not become a corporation de jure, it was a de facto corporation during the whole of the time over which the transactions with the defendant extended. As such de facto corporation it had a full complement of officers, and was carrying on an extensive business; and there was lawful authority for its incorporation. Its corporate existence, during the time it was so acting, cannot be questioned in this collateral proceeding. Humphreys v. Mooney, 5 Colo. 282. Aside from this, after its corporate capacity had become complete, the plaintiff passed upon and allowed the defendant's account embracing these items; and, if this had not been done, it having accepted and appropriated the fruits of Rollins' labor and money, the law would imply a promise to pay for the same. We think the item of $368.25 was properly allowed. We do not deem it necessary to consider the assignments of error relating to the admission and rejection of certain testimony, as the final judgment would not be affected by any decision that might be made thereon. Upon a careful examination of the evidence, we see no reason for disturbing the findings of the referee. The judgment is accordingly HAYT, J. The principal questions raised affirmed. v.21p.no.14—57 (13 Colo. 11) I all other citizens of the state. If the defendant corporation has violated the law, (Supreme Court of Colorado. May 24, 1889.) either by doing some forbidden act or by neglecting to do some act enjoined upon it, it QUO WARRANTO-NATURE of the Writ. 1. Civil Code Colo. 1883, § 315, provides that "an is not every person who may call it to acaction may be brought by the district attorney in count for such violation. As a general rule, the name of the people of this state, upon his own prosecutions for wrongs done to the public information, or upon the relation and complaint of must be instituted by the state through its a private party, against any person who usurps, intrudes into, or unlawfully holds any public of properly authorized agents, while the indifice" or franchise, etc.; "and, in case such district vidual can only sue for injuries peculiarly attorney shall neglect or refuse to bring such ac- affecting him; and the provision of the Code tion upon the complaint of a private party, such action may be brought by such private party upon permitting an action in the nature of a quo his own relation, in the name of the people." warranto to be brought by a purely private Held that, notwithstanding the refusal of the dis- party, upon the neglect or refusal of the district attorney, a private party who has no other trict attorney to bring such action, must be or different interest in the result than have all cit-construed with reference to this general rule. izens cannot maintain the action as relator. 2. The fact that the relator owns land which the defendant corporation has appropriated without compensation does not give him such an interest as enables him to maintain the action to dissolve the corporation. His interest is not one in which the public is concerned, being merely a right to sue for damages. Appeal from district court, Clear Creek county. In considering the nature of the interest nec- This proceeding was instituted under section 315 of the Civil Code of 1883, in the name of the people, upon the relation of Frank S. Byers, for the purpose of procuring a dissolution of the defendant corporation. The facts alleged are similar to those stated in the case of Byers v. Rollins, ante, 894, (decided at this term.) The court below sus-ing an information." King v. Stacey, 1 Term tained a demurrer to the complaint, and en- R. 3. The language quoted was used in refertered judgment for the defendant, and the ence to the statute of 9 Anne, c. 20, relating to plaintiff brings the case here for review by informations in the nature of a quo warranto, appeal. The section of the Code referred to under which it was expressly provided that is as follows: "An action may be brought the information might be exhibited by the by the district attorney in the name of the proper officer "at the relation of any person people of this state, upon his own informa- or persons desiring to sue or prosecute the tion, or upon the relation and complaint of a same." See appendix to High, Extr. Rem. private party, against any person who usurps, 585. The same view is taken in Pennsylintrudes into, or unlawfully holds or exer- vania under a statute containing a similar cises any public office, civil or military, or provision in reference to the relator as that any franchise within his district in the state, quoted from the English statute. In Com. and it shall be the duty of the district attor- v. Railway Co., 20 Pa. St. 518, the court ney to bring the action whenever he has rea-said: "A stranger who has no interest in a son to believe that any such office or fran- corporation, except that which is common to chise has been usurped, intruded into, or un- every citizen, cannot demand a judgment of lawfully held or exercised by any person, or ouster in a writ of quo warranto. * * * when he is directed to do so by the governor; No mere stranger should be permitted to deand, in case such district attorney shall neg-mand the forfeiture of a charter granted by lect or refuse to bring such action upon the complaint of a private party, such action may be brought by such private party upon his own relation, in the name of the people of the state." W. T. Hughes, for appellant. R. H. Gilmore, for appellees. HAYT, J., (after stating the facts as above.) It is averred in the complaint that the district attorney of the proper district refu to bring the suit upon application; and, therefore, plaintiff claims the right to maintain the action as relator by virtue of the provisions of section 315 of the Civil Code, although it does not appear that he has any other or different interest in the result than such as he may have in common with the state, where she does not demand it. She has a right to waive the forfeiture; and it is her interest, in many cases, to do so." It will be noted that the provision in reference to the person who may act as relator is as broad in the English statute as in our own. In fact, the statute of this and other states, relating to actions for the usurpation of an office or franchise, are generally modifications of this statute of Anne, and the universal rule of decisions in all cases in which the action has been brought for the purpose of dissolving a corporation has been that the relator, to maintain the action, must have some interest beyond that common to every citizen, and further than this we are not concerned in this case. High, Extr. Rem. § 654; Murphy v. Bank, 20 Pa. St. 415; State v. Smith, 32 Ind. 213; State v. Stein, 13 | sion the treasurer of Pueblo county. In OcNeb. 530, 14 N. W. Rep. 481. It was said tober, 1881, the city council of Pueblo passed in the oral argument that Frank S. Byers, a general ordinance prescribing the mode of the relator, is the owner of one of the banks determining local assessments for certain upon which the bridge rests, and that the de- public improvements, which provided for “an fendant had appropriated the same without apportionment of the charges to be assessed compensating him therefor, and that this among the private owners, and their lots or ownership entities the said Byers to prose- lands, and the city, pro rata, according to cute the action as relator. There are two the number of feet fronting or abutting on conclusive answers to this argument: First. or opposite to said work; the city to be It does not sufficiently appear from the com- charged according to the width in feet of the plaint that he is such owner. Second. If it intersections on one or both sides of streets did so appear, and also that the defendants and alleys, as the case may require: providtook possession of said bank unlawfully, they ed, that in assessing the costs of sewers, would, under such circumstances, be tres- where the sides of lots merely abut on the passers, and liable in damages for the injury. work without deriving any benefit therefrom, The public, however, would be in no way the council may, in the ordinance or resoluconcerned with the controversy; and, as we tion authorizing the construction of the sewhave seen, this is a sufficient reason for deny-er, exempt such lots from part or all the costs ing the extraordinary remedy by quo war- thereof." Thereafter ordinances authorizing ranto. People v. Turnpike Co., 2 Johns. the construction of certain sewers were 190. The complaint failing to show any in- passed as follows: "That a sewer be laid and terest in the controversy in Frank S. Byers, constructed in and through the alley next the relator, other than such as pertains to west of Santa Fé avenue, from Sixth street every citizen, the trial court properly sus to Front street, for the use and benefits of tained the demurrer, and the judgment is ac- lots on the west side of Santa Fé avenue, becordingly affirmed. tween said streets, and the cost of said sewer is hereby directed to be charged on the respective owners of said lots, and on said lots, and on the city for the intersection of cross streets." Also an ordinance similar to the one last above recited was passed, extending the aforesaid sewer from Sixth street to 1. Const. Colo. art. 10, § 7, provides that the Eighth street in said city, through the alley general assembly may vest in the corporate author- west of Santa Fé avenue, and directing the ities of any municipal corporation the power to assess and collect taxes for corporate purposes. Sec costs to be assessed against lots abutting on tion 3 provides that "all taxes shall be uniform said sewer and on the west side of Santa Fé upon the same class of subjects, within the terriavenue. Thereafter, by virtue of similar ortorial limits of the authority levying the tax.' Act Colo. April 4, 1877, (Gen. Laws, C. 100; Gen. dinances, certain other lateral sewers runSt. c. 109,) $ 14, invests the city council with powning in the cross streets and alleys, and coner, inter alia, "to levy and collect taxes for gen- necting with the sewer provided for in the eral and special purposes," and "to construct and ordinances herein before recited, were ordered keep in repair culverts, drains, sewers, and cess (12 Colo. 593) CITY OF PUEBLO et al. v. ROBINSON et al. (Supreme Court of Colorado. May 24, 1889.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS -SEWERS-ASSESSMENTS. 2. The city council has power to prescribe the rule of apportionment of such assessment, and to exempt lots abutting laterally on the sewer, and deriving no benefit therefrom; and, where it does not appear affirmatively that such mode of assess ment will work injustice, an injunction to restrain the sale of the assessed lots on that ground should pools," and provides (paragraph 75) that "each to be constructed for the benefit of the lots municipal corporation may, by general ordinance, abutting thereon, and the cost thereof diprescribe the mode in which the charge on the re-rected to be similarly assessed against the spective owners of lots or land, and on the lots or said lot-owners. That the said sewers were lands, shall be assessed and determined for the purposes authorized by this act." Held, that a in fact constructed, as provided by the said city council had power to order a special assess ordinances, in a good, workman-like manner, ment for the purpose of constructing a sewer, and and the said city of Pueblo accepted and paid to authorize the county treasurer to collect the assessment by sale of the lots assessed. for the same, and assessed the cost thereof, in the manner provided by the aforesaid ordinance passed in October, 1881, against the owners of the lots abutting on said sewer. It was further provided that such assessments should constitute a lien against such lots respectively; and that the same should be collected and paid over by the county treasurer Appeal from district court, Pueblo county. in the same manner as general city taxes. This was a case submitted to the district The owners of said lots having failed to pay court in June, 1885, upon an agreed state- said assessments, the county treasurer was ment of facts showing that the city of Pueblo proceeding to advertise said lots for sale, was at the time of such submission, and at whereupon this case was instituted as aforeall times to which the statement relates, a said, and the points in controversy upon duly organized city of the second class, un- which the decision of the court is asked are der an act of the general assembly of this as follows: "Are the said assesments legal state relating to municipal corporations, ap- and valid in law as special assessments proved April 4, 1877, and the acts amenda- against the property described? And has tory thereof, and that the defendant Christo- the county treasurer authority to collect the pher Wilson was at the time of such submis-same by sale of aforesaid property?" The be refused. district court adjudged the assessments ille- | within the police power of the state, it remains gal, and perpetually enjoined the collection for us to determine whether or not such power thereof. The city of Pueblo and the county treasurer bring this appeal. Chas. C. Stein, for appellants. Chas. E. Gast, for appellees has been conferred upon cities of the second class. Referring to the act of April 4, 1877, (Gen. Laws, c. 100; Gen. St. c. 109,) we find that by section 14 the city council is invested, inter alia, with power (paragraph 3) "to ELLIOTT, J., (after stating the facts as levy and collect taxes for general and special above.) The constitution of the state (art. purposes on real and personal property;" 10, § 7) provides that "the general assembly also (paragraph 10) “to construct and keep may, by law, vest in the corporate authori- in repair culverts, drains, sewers, and cessties of any county, city, town, or other mu- pools, and to regulate the use thereof." The nicipal corporation, respectively, the power same section further provides (paragraph 75) to assess and collect taxes for all purposes of that "each municipal corporation may, by such corporation." Section 3 of the same general ordinance, prescribe the mode in article provides that "all taxes shall be uni- which the charge on the respective owners form upon the same class of subjects within of lots or lands, and on the lots or lands, shall the territorial limits of the authority levying be assessed and determined for the purposes the tax." It has been frequently held that authorized by this act. Such charge, when the word "taxes," as used in the section last assessed, shall be payable by the owner or referred to, does not include special assess-owners at the time of the assessment, perments against property specially benefited sonally, and also by a lien upon the respectby local improvements; but the decisions of ive lots or parcels of land from the time of this court are to the effect that such assess- the assessment." This would seem to be ments cannot be upheld, under the uniform- ample authority for the action of the city ity rule of taxation, unless the improvements council of Pueblo in this case. But it is conare clearly within the domain of police regu- tended that the words "for the purposes aulations. Cooley, Tax'n, 444; 2 Dill. Mun.thorized by this act," in paragraph 75, are Corp. § 761; Emery v. Gas Co., 28 Cal. 345; limited to the charges authorized by paraPalmer v. Way, 6 Colo. 106; Brown v. City graph to be assessed for water or gas rents of Denver, 7 Colo. 305, 3 Pac. Rep. 455; in case water or gas works should be conKeese v. City of Denver, 10 Colo. 112, 15 Pac. structed by any city or incorporated town. Rep. 825. "The province of the police pow- This position would be exceedingly plausible er," says Justice BECK in Palmer v. Way, were it not that in making provision for the the same paragraph f supra, "is the preservation of order, and collection of suchny such proceedings, the making of such rules and regulations as shall be conducive to the health, comfort, and protection of society, and not primarily the raising of revenue.' In Keese v. City of Denver, supra, Mr. Commissioner RISING says: "Sewer assessments are within this [police] power." A good system of sewerage in a populous city is undoubtedly as es further on says: "In or for water where pleadings are requ for work and labor aauthorize sential to the health and comfort of society gas or water rents. The whole the in the immediate vicinity thereof as good sidewalks, and therefore may properly be classified among the local improvements by which the property adjacent thereto may be specially benefited, and for the construction of which special assessments may be levied. This doctrine is clearly applicable where the sewers are confined to comparatively narrow limits, and are constructed for the special benefit of the abutting property. Cooley, Tax'n, 399-450; 2 Dill. Mun. Corp. § 809. Under our constitution the power to make special assessments for local improvements must be confined to purposes clearly within the domain of police regulations. The power must be granted by the general assembly in express terms, or by necessary implication; and, when so granted, must be strictly construed by the courts, and strictly followed by the municipality attempting to exercise the same, else the assessments made thereunder will not be valid. Cooley, Tax'n, 418; 2 Dill. Mun. Corp. § 763. The authority to make special assessments for the construction of sewers in cities being sec act under consideration, and especially Whe The objection that the general assembly, and not the city council, must prescribe the rule of apportionment in case of special as |