- Ac § 901. Same subject. Rules to guide Judicial Discretion. cordingly, where it appeared that an election for municipal officers was held on the wrong day, but the mistake was not discovered by any one, either officers, candidates, or voters; and there was no fraud, and the election was participated in by a large majority of the voters, the court refused to allow an information against an alderman chosen at such election, the refusal being strengthened by the consideration that the proceeding, if successful, would leave the council without a quorum for nearly a year. The rules which usually guide the discretion of the court in such cases are thus stated: (1) The relator must not be a mere stranger or intermeddler; (2) He must not have concurred in the act of which he now complains; (3) Unless there is fraud or intentional violation of law, it must appear that public or private interests will not be seriously affected by the ouster of the incumbent,1 § 902 (723). Where there can be no Trial during Officer's Term. In England there is a discretion in the court to grant an information in the nature of a quo warranto although the case cannot be tried until the term of the officer is at an end, satisfactory reasons for the delay being given; and it has even been granted though the office be determined at the time the application for the information is made. In this country the authorities are conflicting. In some of the States it has been held that an information will not be granted when it is not possible to enter a judgment before the term of the officer proceeded against expires. In other cases it has been adjudged, and we think correctly, that quo warranto may be properly brought during the official term of the officer, and if so brought, that it may be tried, and the proper judgment entered afterwards. lar annual election, of which the time is fixed by charter, is directory. People v. Hartwell, 12 Mich. 508 (1864); People v. Witherell, 14 Mich. 48; ante, secs. 197, 217, 221, 839; Stephens's Nisi Prius, 2446, 2447. So where the election was held at the wrong place when the rule was applied for by a defeated candidate. People v. Waite, 70 Ill. 25 (1873); High Extraor. Rem., sec. 646. Where the Attorney-General is the relator, a quo warranto may issue without a rule to show cause. As the law officer of the Commonwealth, he is presumed to be impartial. Commonwealth v. Bank of America, 10 Phila. (Pa.) 156. 1 State v. Tolan, 33 N. J. L. 195, 198, per Depue, J. In 2 Rex v. Williams, 1 W. Black. 95; Rex v. New Radnor, 2 Ld. Kenyon's Notes, 498; Rex v. Harris, 6 Ad. & El. 475 (33 Eng. C. L. 117); Rex v. Powell, Sayer, 239; Rex v. Warlow, 2 M. & S. 76; Rex v. Payne, 2 Chitty, 367; Angell & Ames, sec. 744. Present state of legislation and adjudications in England on the effect of de. lay in commencing proceedings. Rawlinson on Corp. (5th ed.) 357; Stephens's Nisi Prius, 2432. In Regina v. Blizard, L. R. 2 Q. B. 634, it is held that although the officer had disclaimed, the relator was entitled to judgment of ouster. 538. 8 Commonwealth v. Swasey, 133 Mass. North Carolina the doctrine of the English courts above mentioned has been followed, and it has not been considered absolutely necessary that the information should be applied for while the defendant is continuing to hold the office. The cases on this subject are referred to in the note.1 § 903 (724). User by Defendant necessary. Under the statute of 9 Anne, chap. xx. sec. 4, re-enacted in many of the States literally or in substance, it is settled that there must be some act of usurpa tion — a user or possession of the office or franchise - to authorize an information in the nature of a quo warranto. It is not sufficient to allege merely that the defendant claims to use or exercise the office or franchise.2 § 904 (725). Effect of Judgment. The judgment of ouster on quo warranto, until reversed, conclusively and finally determines the right as to all persons whomsoever; and it may be given in 1 "The resignation of the incumbent, or even the termination of his office, will not prevent the information being prosecuted to a final judgment, if the proceedings were commenced prior to the resignation, or the expiration of the term." Per Wagner, C. J. Hunter v. Chandler, 45 Mo. 452 (1870); s. c. 10 Am. L. Reg. (N. S.) 440; 8. P. Commonwealth v. Smith, 45 Pa. St. 59; People v. Hartwell, 12 Mich. 508 (1864). But in Georgia it is held that the title to an office will not be tried on quo warranto, when at the time of trial the term of office is expired and no judgment of ouster can be rendered. Morris v. Underwood, 19 Ga. 559 (1856). In Massachusetts an information was refused, for reasons partly peculiar, where the office was annual, and there could be no determination during the year. Commonwealth v. Athearn, 3 Mass. 285 (1807); Howard v. Gage, 6 Mass. 462. See, also, People v. Sweeting, 2 Johns. (N. Y.) 184; State v. Jacobs, 17 Ohio, 143. Compare People v. Loomis, 8 Wend. (N. Y.) 396 (1832). Following the decisions in England, it has been held that an information in the nature of a quo warranto may, in certain cases, be filed against public officers after the expiration of their office, or against special commissioners after they have acted. Burton v. Patton, 2 Jones (N. C.) Law, 124 (1854). In The King v. Williams, 1 W. Black. 93, there was a judgment of ouster, although the usurpation (for unlawfully holding a court in the corporation of Denbigh) was not continued to the trial, Lord Mansfield observing, "Judgment of ouster must be given, lest the defendant repeat the act." Ib. 95. Effect of acquiescence and lapse of time on the remedy by quo warranto. People v. Oakland Co. Bank, 1 Doug. (Mich.) 285; People v. Bank of Pontiac, 12 Mich. 527; State v. Pawtuxet Turnp. Co., 8 R. I. 521; State v. Cinc. Gasl. & C. Co., 18 Ohio St. 285 (1868); Angell & Ames Corp. sec. 743. 2 Rex v. Ponsonby, 1 Vesey, 1, leading case, where defendants were charged with usurping a municipal office, cited and approved and followed by Supreme Court of New York, in The People v. Thompson, 16 Wend. 655 (1837). See, also, Rex v. Whitwell, 5 T. R. 86; Buller's Nisi Prius, 211; Willc. on Mun. Corp. 462, pl. 254 et seq.; Angell & Ames Corp. sec. 744; Stephens's Nisi Prius, 2457. The statute of Anne commences, "If any person or persons shall usurp, or intrude into, or unlawfully hold and execute, the offices of," &c. evidence by the parties and others, without being pleaded, on an issue involving the rights upon which it has passed.1 § 905 (726). Practice. It does not belong to the present work to treat of the practice in proceedings in informations in the nature of a quo warranto. This is regulated to a considerable extent by the statutes of the different States, which modify and render more simple, speedy, and effectual the common-law modes of procedure. But the nature of the remedy, and the principles which govern it, remain substantially as at common law, as amended by remedial Acts of Parliament; and the practice, as near as practicable, is the same as in the King's Bench, except when altered by the legislation of the particular State. It must suffice to refer the reader to some of the sources of information on this subject.3 1 Utica Ins. Co. v. Scott, 8 Cow. (N. Y.) 709, 721 (1826), per Colden, Senator, and authorities there digested. In Missouri, see Hunter v. Chandler, 45 Mo. 452. A former judgment on an individual relation in quo warranto by the district attorney was held to be no bar to a public proceeding by the Attorney-General. State v. Cinc. Gasl. & C. Co., 18 Ohio St. 285 (1868). And a decree of a Federal court enjoining a party from obeying an ordinance does not affect the right of the State, not a party to that proceeding, to proceed by quo warranto to test the validity of the ordinance. Ib. A judgment of ouster in a proceeding on quo warranto is not evidence against one who in no way holds under the defeated party. People v. Murray, 73 N. Y. 535; Dodge v. People, 113 Ill. 491. See, also, Herman on Estoppel, Index thereto, title Quo Warranto. 2 Commonwealth v. Jones, 12 Pa. St. 365 (1849), where the practice under the Act of 1836 is stated. Former practice no longer obtains under code of New York. People v. Conover, 6 Abb. Pr. R. 220. Willc. 453 et seq.; Angell & Ames, chap. xxi. ; 3 Black. Com. 262; Buller's Nisi Prius, 210; Stephens's Nisi Prius, 2429 et seq., 2460. Rule to show cause. Commonwealth v. Jones, 12 Pa. St. 365. When dispensed with. State v. Gummersall, 24 N. J. L. 529 (1854). Process upon filing information. Willc. 264; Commonwealth v. Smead, 11 Mass. 74; State v. Gummersall, 24 N. J. L. 529 (1854). Forms of information; Pleas and Replication in proceedings in quo warranto. People v. Bank of Niag ara, 6 Cow. (N. Y.) 196, approving precedent used in the celebrated case against the city of London (3 Hargr. St. Tr. 545), and in Rex v. Amery (2 D. & E. T. R. 515). For further forms, see learned and valuable note to the People v. Richardson, 4 Cow. (N. Y.) 106 et seq., and authorities there cited; People v. Van Slyck, 4 Cow. (N. Y.) 297. See, also, Eaton v. State, 7 Blackf. (Ind.) 65 (1843); Lavalle v. People, 68 Ill. 252 (1873). In a proceeding by quo warranto, an information based on the allegation that a certain law, in point of fact, will apply to but a single city, and is therefore "local" and unconstitutional, must set forth the facts in a traversable form, showing this to be the fact. State v. Parsons, 40 N. J. L. 1. An information in the nature of quo warranto is a civil suit in such a sense that it may if other requisites exist be removed from the State to the Federal courts under the Act of March 3, 1875. Ames v. Kansas, 111 U. S. 449; Foster v. Kansas, 112 U. S. 201. Form of verdict. Thompson v. People, 23 Wend. (N. Y.) 537, reversing s. c. 21 Wend. 235. Form of judgment of ouster. 2 Kyd on Corp. 407; Utica Ins. Co. v. Scott, 8 Cow. (N. Y.) 721; Commonwealth v. Fowler, 10 Mass. 290 (1813); s. c. 11 Ib. 339, where the form of judgment is given. See, also, as to form of judgment, Miner's Bank v. United States, 5 How. (U. S.) 213 (1847). If relators are successful, they are entitled to costs, and hence are entitled to a judgment of ouster, although the term of office in question has expired. People v. Loomis, 8 Wend. (N. Y.) 396 (1832); People v. Clute, 52 N. Y. 576 (1873). Contra, State v. Jacobs, 17 Ohio, 143. Angell & Ames Corp. sec. 745; supra, sec. 902. In quo warranto to try title to office, if the defendant is adjudged to have unlawfully intruded himself into the office, costs must be awarded to the relator, even if he fails to establish his own right to the office, the terms of the statute being express. State v. Jenkins, 46 Wis. 616. Judgment, under statute, of ouster against the defendant without passing upon the plaintiff's right. Gano v. State, 10 Ohio St. 237. The refusal of the court to allow a claimant to a public office to file an information is a final judgment, reviewable on error, and this, notwithstanding the court has a discretion in granting or refus ing leave. State v. Burnett, 2 Ala. 140 (1841); Ethridge v. Hill, 7 Port. (Ala.) 47. CHAPTER XXII. REMEDIES TO PREVENT, CORRECT, AND REDRESS UNAUTHORIZED OR ILLEGAL CORPORATE ACTS. This subject will be considered in the following order : 1. Of the Remedy in Equity-secs. 906-924. 2. 3. Of the Remedy by Certiorari-secs. 925-929. Of the Remedy by Prohibition-sec. 930. 4. Of the Remedy by Indictment-secs. 931-934. The remedy by mandamus and quo warranto has already been considered. The remedy by private or civil action is treated in the next chapter. Remedy in Equity. § 906 (727). Equity Jurisdiction exceptional. Courts of equity will sometimes interfere to prevent the municipal authorities from transcending, or from making a wrongful use of, their powers, and will in proper cases relieve against their unauthorized or wrongful acts; but on a principle well known in our jurisprudence, there must, in the absence of controlling legislation, be some distinct ground or head of equity to justify a resort to this jurisdiction, such as the want of an adequate remedy at law, multiplicity of suits, irreparable injury, fraud, breach of trust, or the like.2 Usually the § 907. Usual Remedy is at Law, not in Equity. question whether municipal and public corporations are acting, or have acted, within the limits of the authority which the law confers upon them, involves an examination of purely legal principles, unmixed with equity. Therefore, the Court of Chancery has no general jurisdiction to restrain, review, or set aside, even if irregular or illegal, the proceedings of such a corporation. Such jurisdiction belongs, except in special cases which will be mentioned, and which 1 Stubenrauch v. Neyenesch, 54 Iowa, 567. If mandamus will lie to compel payment of municipal indebtedness or a levy of taxes for that purpose, there is an adequate remedy at law, and injunction will not be awarded. Hausmeister v. Porter, 21 Fed. |