STATE ex rel. BOARD OF REGENTS v. McCLOSKEY BROTHERS, INC.

STATE ex rel. BOARD OF REGENTS v. McCLOSKEY BROTHERS, INC.
2009 OK 90
227 P.3d 133
Case Number: 105228
Decided: 12/08/2009

THE SUPREME COURT OF THE STATE OF OKLAHOMA

THE STATE OF OKLAHOMA ex rel. BOARD OF REGENTS for the OKLAHOMA AGRICULTURAL AND MECHANICAL COLLEGES, Plaintiff/Appellee
v.
McCLOSKEY BROTHERS, Inc. an Oklahoma Corporation; Defendant/Appellant,
BANK OF NICHOLS HILLS and COUNTY TREASURER OF PAYNE COUNTY, STATE OF OKLAHOMA.

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION II

Honorable Donald Worthington, Trial Judge

¶0 The appellee, Regents for Oklahoma State University brought an eminent domain proceeding to take the real property of the appellant, McCloskey Brothers, Inc. The landowner challenged the taking by arguing that the Regents were unconstitutionally formed. The trial court, the Honorable Donald Worthington, determined that the landowner lacked standing to raise such an argument and the court confirmed the report of the commissioners. The landowner appealed and the Court of Civil Appeals affirmed. We hold that: 1) the landowner's failure to appeal an interlocutory order regarding standing was not preclusive insofar as being raised as an issue in this appeal; 2) although the landowner has standing to challenge the taking generally, such standing does not include the right to collaterally attack the qualifications of the Regents; and even if it did, the Regents' actions were valid as de facto Regents; 3) the taking was for a valid public purpose; and 4) the Regents negotiated in good faith.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS OPINION VACATED

Randall Elliott, Pryor, Oklahoma, Barry Kent Roberts, Norman, Oklahoma, for Plaintiff/Appellee.
Harlan Gene Hentges, Edmond, Oklahoma, for Defendant/Appellant.

KAUGER, J.:

¶1 This cause concerns an eminent domain proceeding brought by the Board of Regents for the Oklahoma Agricultural Colleges (appellee/Regents), against the McCloskey Brothers, Inc. (appellant/the landowner/McCloskey Brothers). The dispositive issues presented on certiorari

¶2 We hold that: 1) the landowner's decision not to appeal the interlocutory order regarding standing is not preclusive; 2) the landowner has standing to dispute the taking, but such standing does not include the ability to challenge the composition of the Board of Regents. This right is reserved to quo warranto proceedings initiated by the State. Regardless, the Regents' actions were valid because they were de facto Regents approved by the Governor and confirmed by the Senate. We further hold that: 1) the taking of land for an athletic village was for a valid public purpose; and 2) the Regents acted in good faith.

FACTS

¶3 On September 13, 2005, the appellant, the McCloskey Brothers, a corporation owned by brothers Keven and Joel McCloskey, purchased a small rental house located approximately one half of a block away from the north and east side of the Oklahoma State University (the University) campus in Stillwater, Oklahoma.

¶4 At about the same time that the landowner acquired the property, information began circulating in the community that the University was interested in a large area on the east side of campus and across the street north, to create what it had labeled an "athletic village." The proposed village area was located directly north of the current football stadium where the University planned to build athletic training fields, indoor and outdoor training facilities, and a parking garage. By December 2005, the University, through its Foundation and an acquisition agent, had already begun acquiring properties from property owners. In a letter dated December 23, 2005, the University's Foundation offered to purchase the property from the McCloskey Brothers for $50,000.00,

¶5 The McCloskey Brothers, in a letter dated May 6, 2006, responded to the December 23, 2005, letter, rejected the offer, and suggested that the property was really worth closer to $103,120.98.

¶6 Finally, on July 28, 2006, the appellee, the Regents for the University, passed a resolution recognizing that negotiations with the landowner had failed and that the property should be acquired through eminent domain proceedings.

¶7 On September 15, 2006, the trial court appointed three commissioners and issued instructions for determining the fair market value of the property. The commissioners filed their report on October 10, 2006, valuing the property at $84,000.00. On November 8, 2006, the landowner filed its exception to the commissioners' report arguing that: 1) the Regents could not legally exercise the power of eminent domain because a majority of the Regents were not farmers as required by the Oklahoma Constitution;

¶8 The Regents responded to the landowner's allegations and sought to confirm the commissioners' report. On June 12, 2007, the trial court ruled that the landowner did not have standing to challenge the legality of the appointment of the individual members of the Regents.

¶9 It is from this July 23, 2007, order which the landowner appealed. The Court of Civil Appeals affirmed the trial court, but it neglected to address any claims which were resolved by the trial court's June 12, 2007, order because the landowner did not appeal from that order. We granted certiorari on October 12, 2009.

I.
¶10 FAILURE TO APPEAL AN INTERLOCUTORY ORDER
REGARDING STANDING IS NOT PRECLUSIVE OF THE ISSUE IN THIS
APPEAL.

¶11 The Court of Civil Appeals, sua sponte, determined that because the landowner did not appeal the trial court's June 12, 2007 order, certain issues were precluded from review in this appeal. This Court reviews final orders,

II.
¶12 THE LANDOWNER'S STANDING TO CHALLENGE THE TAKING
DOES NOT INCLUDE THE ISSUE OF WHETHER THE REGENTS WERE
PROPERLY, CONSTITUTIONALLY FORMED. REGARDLESS,
BECAUSE THEY WERE ACTING AS DE FACTO REGENTS, THEIR
ACTIONS WERE VALID.

¶13 The landowners challenge the commissioners' report by arguing that: 1) the Oklahoma Constitution, art. 6, §31A

a. The Oklahoma State University Board of Regents is a public corporation
with the legal authority to acquire and take title to real property through the
power of eminent domain/condemnation.

¶14 The inherent power of an entity to take private property for public use is called the power of eminent domain.

¶15 The power of eminent domain remains dormant until the Legislature, by specific enactment, delineates the manner by which and the entity through which it may be exercised.

¶16 Pursuant to the Oklahoma Constitution, art. 6, §31A and

b. Standing to challenge the taking of real property by
condemnation/eminent domain does not include the authority to collaterally
attack the legality of a corporation's existence when it is acting as a de facto
corporation.

¶17 Standing refers to the legal right of a person to challenge the conduct of another in a judicial forum.37 An initial inquiry must reveal that: 1) an actual or threatened injury has occurred; 2) some relief for the harm can be given; and 3) the interest to be guarded is within a statutorily or constitutionally protected zone.38 Not only is standing confined to those whose interest in the controversy is direct, immediate and substantial, a litigant must also have a personal stake in the outcome.39

¶18 When standing is placed in issue in a case, the question to be answered is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue -- not whether the issue itself is justiciable.

¶19 We have no doubt, nor is it disputed, that the landowner has standing to challenge the taking because they suffered injury to a legally protected interest as contemplated by statutory or constitutional provisions. However, this does not address the question of whether such standing includes the issue the landowners wish to have adjudicated -- the legality of the existence of the Regents because they may not all be farmers.

¶20 Where the question of right or title to office is put in issue, the appropriate remedy is an action in the nature of quo warranto.

¶21 In Macy v. Oklahoma City School District No. 89,

¶22 The rule that private individuals may not do indirectly or collaterally what they cannot do directly has been illustrated in the doctrine of de facto corporations and de facto officers. Under the de facto doctrine, a corporation's or municipal corporation's actions will be upheld as valid when: 1) a valid law exists authorizing the corporation; 2) a bone fide attempt to organize under such law is made; and 3) an actual good faith exercise of corporate powers.

¶23 A de facto officer is similarly treated like a de facto corporation. For example, in Ajax Contractors, Inc. v. H.L. Myatt,

¶24 The same result has been applied whether the challenge was brought in the context of a member of a school board,

¶25 The same rationale is applicable here, where: 1) the corporate body, the Regents, are undisputedly a public corporation which validly exists pursuant to the Okla. Const. art 6, §31A;

III.
¶26 THE TAKING WAS FOR A VALID PUBLIC PURPOSE.

¶27 The landowner argues that the taking was not for a proper public purpose as required by the Oklahoma Const. art 2, §§23-24

IV.
THE REGENTS NEGOTIATED IN GOOD FAITH.

¶28 Finally, the landowner insists that the Regents negotiated in bad faith because they: 1) they used third parties to initiate negotiations; 2) and held a public meeting announcing that it would resort to eminent domain proceedings if necessary. The Regents contend that they have acted in good faith. A review of the record reflects that the gravamen of the landowners' complaint has more to do with the fact that the Regents did not readily succumb to their demands or that the Regents may have paid some other landowners more than the market value. Whether the Regents paid two, three, or four times the market value for any particular property has nothing to do with the issue of bad faith as far as negotiation with the McCloskey Brothers is concerned. As long as the Regents met the minimum constitutional standards for compensation and did not violate any other state law, there was nothing to preclude them from paying as much as they wanted for properties, but paying more than market value does not in and of itself constitute bad faith. There was no evidence presented which reflects bad faith behavior on behalf of the Regents. The landowners' argument is this regard is unpersuasive.

CONCLUSION

¶29 The landowner's decision not to appeal from an interlocutory order regarding standing is not preclusive of the issue in this appeal. However, the landowner's standing to challenge the taking does not include standing to raise the issue of whether the regents were properly, constitutionally formed. Rather, any challenge to the qualifications of the Regents must be brought by the proper parties in a proceeding quo warranto. Regardless of whether the issue may be collaterally attacked, the Regents were de facto Regents and their actions are valid. The taking of the property for an athletic village was for a valid public purpose. The Regents did not act in bad faith in negotiating to purchase the landowner's property. Accordingly, the trial court is affirmed, but because both parties demanded a jury trial on the issue of sufficiency of compensation, the cause is remanded for a jury trial.

CERTIORARI PREVIOUSLY GRANTED;
COURT OF CIVIL APPEALS VACATED;
TRIAL COURT AFFIRMED AND CAUSE REMANDED TO PROCEED TO
JURY TRIAL ON THE ISSUE OF COMPENSATION.

EDMONDSON, C.J., HARGRAVE, OPALA, KAUGER, WINCHESTER, REIF, JJ., SUMMERS, S.J., concur.

COLBERT, J., concurs in result.

WATT, J., dissenting:

I dissent from the majority opinion which reaches the same result as did the Court of Civil Appeals. My dissent is consistent with my original vote to deny certiorari. Rather than issuing an opinion from this Court on the facts presented, I would vote to deny certiorari and order that the Court of Civil Appeals' opinion be ordered for publication by this Court and anointed with precedential value.

TAYLOR, V.C.J., recused.

FOOTNOTES

1 We consolidated the issues into four. A fifth issue raised by the landowner is whether the commissioners improperly followed the trial court's instructions, resulting in an over-valuation of the landowner's property by approximately $20,000.00. Because the question of whether the commissioners' report exceeded the scope of the trial court's instructions was not raised in the landowner's exception to the commissioners' report, the Court of Civil Appeals refused to address it. However, the record reflects that after the exceptions were filed, it became apparent that the commissioners may have included values such as lost profit and lost rent based, at least in part, on additions to the property which were never made. While it appears that the property value may have been overstated in the commissioners' report by about $20,000.00, we need not address the issue today. Both parties have demanded a jury trial on the issue of the value of property. The jury will have to determine the true value of the property, considering its condition at the time of the taking, rendering moot the decision of whether the instructions were followed, resulting in an inappropriate over-valuation. The issue will ultimately be resolved when the jury determines the true value of the property.

2 The Oklahoma Constitution art. 6, §31A provides in pertinent part

There is hereby created a Board of Regents for the Oklahoma Agricultural and Mechanical College and all Agricultural and Mechanical Schools and Colleges maintained in whole or in part by the State. The Board shall consist of nine (9) members, eight (8) members to be appointed by the Governor by and with the advice and consent of the Senate, a majority of whom shall be farmers, and the ninth member shall be the President of the State Board of Agriculture. Any vacancy occurring among the appointed members shall be filled by appointment of the Governor by and with the advice and consent of the Senate. The members of the Board shall be removable only for cause as provided by law for the removal of officers not subject to impeachment. . . .

This section was added to the Constitution by State Question No. 310, Ref. Petition No. 87, in 1944. Prior to this amendment, §31 provided for the Board of Agriculture to serve as the Regents for all of the State's Agricultural and Mechanical Colleges.

3 The house, which was intended to be used as a rental house, was located on a small, rectangle-shaped lot measuring approximately 60 feet long by 50 feet wide for a total of 3000 square feet. The tiny home was built in 1940, and it consisted of two bedrooms and one bathroom with approximately 644 square feet of living space and an attached single car garage. At various points in the record, the parties refer to the property as having 631 square feet. According to the plaintiff's exhibit #3 for the hearing of July 23, 2007, an appraisal report dated November 16, 2005, the appraisal reported a square footage of approximately 644 square feet. While the appraisal lists the house as being in average condition, the pictures taken in October of 2006, reflect that, at least by that time, "average" may have been an exaggeration. The landowner also discussed, at some point, converting the garage into another bedroom to increase the square footage to between 800 and 900 square feet. This conversion never came to fruition.

4 Trial transcript, July 23, 2007, p. 55, lines 8 and 12.

5 The $50,000.00 offer was based on the November 16, 2005, appraisal report of a real estate appraiser out of Jenks, Oklahoma.

6 The Brothers' figure was at least partially arrived at by presuming the house would be remodeled in the future and the square footage would then increase. The landowner also expressed feelings of being: 1) betrayed by the University for the process in which it had acquired land; and 2) threatened by the University's and the acquisition agent's intimation that eminent domain would be used in the event negotiations could not be mutually agreed upon.

7 Of the 89 properties acquired for the athletic village, this one piece of real property was the lone hold-out for which the University had to resort to eminent domain.

8 Title 66 O.S. 2001 §57 provides in pertinent part:

The provisions of this article with reference to eminent domain shall apply to all corporations having the right to eminent domain, and shall apply to the State of Oklahoma and its various educational, reformatory, penal and eleemosynary institutions, including departments of state having the power to purchase real property for public purposes, and such institutions and departments shall have the right under this article to acquire fee simple title to the property taken. . . .

See also

The state educational institution located at Stillwater, previously known as the Oklahoma Agricultural and Mechanical College and now known as Oklahoma State University of Agriculture and Applied Science, shall continue at the same location and its official name shall be Oklahoma State University. The Legislature further recognizes and confirms that said institution is an institution corporate under the Constitution and laws of Oklahoma with full power and authority, acting through its said constitutional Board of Regents, to do all things necessary or convenient to accomplish the corporate objects of said institution, and said institution, acting through its said constitutional Board of Regents, is hereby recognized to be such public corporation and to have such powers, acting through its regents.

The Board of Regents for the Oklahoma Agricultural and Mechanical Colleges shall have the supervision, management and control of Oklahoma State University, Panhandle State University, Langston University, Connors State College, and Northeastern Oklahoma Agricultural and Mechanical College; and shall have the following additional powers and duties:

. . .6. Accept gifts of real and personal property, money and other things, and use or dispose of the same in accordance with the directions of the donors or grantors thereof; . . .

8. Acquire and take title to real and personal property in its name, on behalf of any of the institutions under its jurisdiction, and convey, exchange or dispose of, or otherwise manage or control, such property in the interest of such institutions, including the granting of leases, permits, easements and licenses over or upon any such real property. The Board shall have the power to institute any legal action in the name of the Board before any court having jurisdiction of such actions. The Board shall have the custody and control of abstracts of title and instruments affecting the ownership of or title to real property belonging to the Board, and being held by the Board on behalf of a particular state educational institution . . .

An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.

Title

. . .(b) The Supreme Court may reverse, vacate or modify any of the following orders of the district court, or a judge thereof:

1. A final order;

2. An order that discharges, vacates or modifies or refuses to vacate or modify a provisional remedy which affects the substantial rights of a party; or grants, refuses, vacates, modifies or refuses to vacate or modify an injunction; grants or refuses a new trial; or vacates or refuses to vacate a final judgment;

3. Any other order, which affects a substantial part of the merits of the controversy when the trial judge certifies that an immediate appeal may materially advance the ultimate termination of the litigation; . . .

The failure of a party to appeal from an order that is appealable under either subdivision 2 or 3 of subsection (b) of this section shall not preclude him from asserting error in the order after the judgment or final order is rendered.

See

Orders of the district court that are interlocutory and may be appealed by right in compliance with the rules in this part are those that:

(a) Grant a new trial or vacate a judgment on any ground, including that of newly discovered evidence or the impossibility of making a record (

Any interlocutory order not appealable by right under the statutes, which order affects a substantial part of the merits of the controversy, may be brought for review to this Court in compliance with the rules in this Part when the trial judge or the judge's successor has certified that an immediate appeal from that order may materially advance the ultimate termination of the litigation. In the exercise of its statutory discretion this Court may refuse to review a certified interlocutory order.

Oklahoma Supreme Court Rule 1.20, 12 O.S. 2001 Ch. 15, App. 1 provides in pertinent part:

a) Judgment. A judgment is the final determination of the rights of the parties in an action.

(1)

(13)

Title

Either party aggrieved may appeal from the decision of the district court to the Supreme Court; but such review or appeal shall not delay the prosecution of the work on such railroad over the premises in question, if such corporation shall first have paid to the owner of said real property, or deposited with the said clerk for said owner, the amount so assessed by said commissioners or district court; and in no case shall said corporation be liable for the costs on such review or appeal, unless the owner of such real property shall be adjudged entitled, upon either review or appeal, to a greater amount of damages than was awarded by said commissioners. The corporation shall in all cases pay the costs and expenses of the first assessment. And in case of review or appeal, the final decision may be transmitted by the clerk of the proper court, duly certified, to the proper register of deeds, to be by him filed and recorded as hereinbefore provided for the recording of the report, and with like effect. The fee of land over which a mere easement is taken, without the consent of the owner, shall remain in such owner subject only to the use for which it was taken.

Title

When possession is taken of property condemned, as provided herein, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of said compensation.

No person shall . . . be deprived life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The Fifth Amendment of the U.S. Constitution is made applicable to the States by the Fourteenth Amendment.

No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.

The Oklahoma Constitution art. 2, §24 provides:

Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. Such compensation shall be ascertained by a board of commissioners of not less than three freeholders, in such manner as may be prescribed by law. Provided however, in no case shall the owner be required to make any payments should the benefits be judged to exceed damages. The commissioners shall not be appointed by any judge or court without reasonable notice having been served upon all parties in interest. The commissioners shall be selected from the regular jury list of names prepared and made as the Legislature shall provide. Any party aggrieved shall have the right of appeal, without bond, and trial by jury in a court of record. Until the compensation shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner divested. When possession is taken of property condemned for any public use, the owner shall be entitled to the immediate receipt of the compensation awarded, without prejudice to the right of either party to prosecute further proceedings for the judicial determination of the sufficiency or insufficiency of such compensation. The fee of land taken by common carriers for right of way, without the consent of the owner, shall remain in such owner subject only to the use for which it is taken. In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question.

a) The Board of Regents for Oklahoma Agricultural and Mechanical Colleges shall be a body corporate and shall adopt an official seal, which shall be attached to all official documents issued by the Board and all contracts entered into by the Board.

(b) The Board of Regents shall annually elect from its membership a Chairman, a Vice Chairman, and a Secretary, each of whom shall serve for a term of one (1) fiscal year, and who shall have such powers and duties as may be prescribed by the Board. The Board shall adopt such rules and regulations as it deems necessary to govern its proceedings and the conduct of its business. The Secretary of the Board shall keep minutes of all meetings and all transactions considered at such meetings, and it shall not be necessary that the Secretary be a member of the Board.

(a) The Board of Regents created by Section 31a, Article 6, Oklahoma Constitution, shall be known as the Board of Regents for the Oklahoma Agricultural and Mechanical Colleges. It shall consist of nine (9) members, one of whom shall be the President of the State Board of Agriculture, the remaining eight members to be appointed by the Governor, by and with the advice and consent of the Senate. Provided, that persons now serving on such Board shall be members of and shall continue to serve on the Board for the terms for which they were appointed.

(b) Appointments shall be to numbered positions on the Board, and the terms of members of the Board shall be, as follows: . . .

(c) A majority of the members appointed by the Governor shall be farmers, who are actually engaged in farming and/or livestock growing as their principal business or occupation in earning a livelihood; and no state, national or county officer shall be appointed as a member of the Board until two (2) years after tenure as such officer has ceased.

(d) No member of the Board of Regents shall be employed upon any work to be performed in connection with any of the Agricultural Colleges or Oklahoma State University of Agriculture and Applied Science, nor shall any member of said Board enter into any contract or business dealings with any of said Agricultural Colleges, in the way of buying, selling or exchanging livestock, or any other business transactions involving a financial consideration.

(e) Members of the Board shall be removable only for cause, as provided by law for this removal of officers not subject to impeachment.

(f) Vacancies on the Board shall be filled by the Governor, for the unexpired term, by and with the advice and consent of the Senate.

A. Subject to and in accordance with the terms hereof, the boards of regents for all state educational institutions for and in behalf of any university, college, school or institution under the jurisdiction of each of the said boards are hereby authorized from time to time to set aside such portion of their respective campuses or of the campuses under the jurisdiction of said boards, or any other land owned or leased by said boards, as may be necessary and suitable for the construction thereon of dormitories, student housing, cooperative group housing, parking facilities, adult education facilities, kitchens, dining halls, auditoriums, student union buildings, field houses, stadiums, public utility plants and systems for the supplying of water, gas, heat or power and other self-liquidating projects and other revenue-producing buildings for the university, college or institution or related institution, which may include public, nonprofit or private entities, deemed necessary by said boards for the comfort, convenience and welfare of their students, and suitable for the purposes for which said institutions were established, including additions to existing buildings used for such purposes; to acquire through construction, purchase, condemnation or any combination thereof such dormitories, student housing, cooperative group housing, parking facilities, adult education facilities, kitchens, dining halls, auditoriums, student union buildings, field houses, stadiums, public utility plants and systems and other revenue-producing buildings and acquire or construct additions, improvements and extensions to existing buildings and structures used for such purposes and to equip, furnish, maintain and operate all such buildings and structures; and to acquire through purchase, condemnation or otherwise any land, rights-of-way, easements, licenses and permits needed for the present or future use of such buildings, structures, plants and systems; provided, that such boards of regents shall not construct or acquire, for their respective institutions, such utility plants or systems whose capacity is in excess of the present or reasonably contemplated future needs of such institutions or related institutions, except as provided in subsection C hereof. (Emphasis supplied.) . . . .

The writ of quo warranto, and proceedings by information in the nature of quo warranto, are abolished and the remedies heretofore obtainable in those forms may be had by civil action; provided, that such cause of action may be instituted and maintained by the contestant for such office at any time after the issuance of the certificate of election by the state, county, township or city election boards, and before the expiration of thirty (30) days after such official is inducted into office; provided further, that all suits now pending, contesting such elections, shall not be dismissed because of the prematurity as to time of their commencement, which shall be deemed valid and timely, if commenced after the issuance of the election certificate or after twenty (20) days after the result of said election having been declared by such election board; and provided further, that this act shall not apply to primary election.

The statutes governing quo warranto actions are found at 12 O.S. 2001 §§1531-1538. A quo warranto action differs and is independent from actions which attempt to remove a public officer for cause as governed by

. . .At common law no one but the law officers of the crown could sue out a writ of quo warranto.

. . .The statute of this state which abolishes the writ of quo warranto, substituting therefor a civil action by which the remedies theretofore obtainable under the writ of quo warranto and proceedings by information in the nature of quo warranto, and modifying the common-law rule with reference to who might prosecute the action . . .

For an explanation of the common law writ, see Painter v. United States ex rel. Soper, 98 S.W. 352 (Ct App Indian Terr. 1906)

Such action may be brought in the Supreme Court or in the district court, in the following cases:

1st, When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, or shall claim any franchise within this state or any office in any corporation created by authority of this state;

2nd, Whenever any public officer shall have done or suffered any act which, by the provisions of law, shall work a forfeiture of his office;

3rd, When any association or number of persons shall act within this State as a corporation without being legally incorporated;

4th, When any corporation does or admits acts which amount to a surrender or a forfeiture of its rights and privileges as a corporation, or when any corporation abuses its power or intentionally exercises powers not conferred by law;

5th, Where any corporation claims, by virtue of a congressional grant, any of the public lands or Indian lands to which the Indian title or right of occupancy has been extinguished;

6th, For any other cause for which a remedy might have been heretofore obtained by writ of quo warranto, or information in the nature of quo warranto.