MANDAMUS, QUO WARRANTO
BY JAMES L. HIGH.
CALLAGHAN AND COMPANY.
STATE JOURNAL PRINTING COMPANY,
PRINTERS AND STEREOTYPERS,
Entered according to act of Congress, in the year 1874, by
JAMES L. HIGH, In the office of the Librarian of Congress, at Washington.
Entered according to act of Congress, in the year 1884, by
JAMES L. HIGH, In the office of the Librarian of Congress, at Washington.
Entered according to act of Congress, in the year 1896, by
JAMES L. HIGH, In the office of the Librarian of Congress, at Washington.
Since the publication of the second edition of this work in March, 1884, nearly twelve hundred decisions bearing upon the topics of which it treats have appeared in the reports, and are embodied in the following pages. This large increase in material has compelled a thorough revision of the entire work, and much new matter has been added both to the text and to the notes. As in the former editions, the work is divided into two parts,— the first treating of the law of mandamus, the second of the law of quo warranto and prohibition. Especial attention is called to the fact that the index is similarly divided,— the index to part first embracing the subject of mandamus, and that to part second including the subjects of quo warranto and prohibition.
J. L. H.
CHICAGO, January, 1896.
PART FIRST. THE LAW OF MANDAMUS.
OF THE ORIGIN AND NATURE OF THE WRIT OF MANDAMUS . . 1
OF MANDAMUS TO PUBLIC OFFICERS.......... 31
I.— Nature and Grounds of the Jurisdiction ..... 31
II.— Election, Title and Possession of Offices...... 49
III— Amotion from Public Offices........- . 67
IV.— Books, Records and Insignia of Office...... 73
V.— Ministerial Officers............ 80
VI—Auditing and Fiscal Officers......... 100
VII.— Executive Officers............. 118
VIII.— Legislative Officers............ 135
IX.— Taxing Officers............. 137
OF MANDAMUS TO INTERIOR COURTS.......... 147
I.— Principles governing the Jurisdiction...... 147
II.—Bills of Exceptions............ 199
IV.—State and Federal Courts.......... 225
V.— Ministerial Functions of Courts........ 230
VI—Justices of the Peace............ 239
VII.— Illustrations of the Jurisdiction........ 346
OF MANDAMUS TO PRIVATE CORPORATIONS........ 276
I.— Outlines of the Jurisdiction.......... 276
II.— Amotion from Corporation.......... 291
III.— Corporate Books and Records......... 306
IV.— Railways, Canals and Public Improvements .... 315
OF MANDAMUS TO MUNICIPAL CORPORATIONS....., . 323
I.— Principles upon which the Jurisdiction is exercised . . 323 II.— Auditing and Payment of Municipal Obligations . . . 338 III.— Municipal Taxation, and herein of Municipal-aid Subscriptions and Bonds........... 368
IV.— Municipal Officers and Elections......... 401
V.— Municipal Improvements, Streets and Highways . . . 413
OF THE PARTIES TO THE WRIT........... 430
I.— Parties for whom the Writ is granted...... 430
II.— Parties against whom the Writ is granted..... 440
OF THE PLEADINGS IN MANDAMUS.......... 448
I.—General Principles governing the Pleadings .... 448
II—The Return to the Alternative Writ....... 457
III.— Pleadings subsequent to the Return....... 488
OF THE PRACTICE IN MANDAMUS.......... . 498
OF THE ALTERNATIVE WRIT............ 529
OF THE PEREMPTORY WRIT............. 547
OF THE VIOLATION OF THE WRIT........... 565
OF THE COURTS INTRUSTED WITH THE JURISDICTION..... 577
PART SECOND. QUO WARRANTO AND PROHIBITION
OF THE ORIGIN AND NATURE OF THE JURISDICTION IN Quo WAR-
OF QUO WARRANTO AGAINST PUBLIC OFFICERS ...... 623
CHAPTER XV. OF Quo WARRANTO AGAINST PRIVATE CORPORATIONS .... 647
CHAPTER XVI OF Quo WARRANTO AGAINST MUNICIPAL CORPORATIONS ... 678
CHAPTER XVII OF THE PARTIES IN QUO WARRANTO .......... 697
CHAPTER XVIII. OF THE PLEADINGS IN QUO WARRANTO ......... 710
OF THE PRACTICE IN QUO WARRANTO......... 731
CHAPTER XX. OF THE JUDGMENT IN QUO WARRANTO......... 745
OF THE WRIT OF PROHIBITION........... 762
I— Nature and Purpose of the Writ........ 763
II.— Principles governing the Jurisdiction...... 773
III.— Practice and Procedure in Prohibition ...... 795
APPENDIX A. Statute of Anne (A. D. 1710)....... 761
APPENDIX B. Statute of Victoria (A. D. 1843)....... 766
APPENDIX C. Common-Law Procedure Act (A. D. 1854) ... 770
APPENDIX D. Statute of Gloucester (A. D. 1278)...... 772
APPENDIX E. Statute De Quo Warranto Novum (A. D. 1290) . . 776
INDEX TO PART FIRST—MANDAMUS.......... 781
INDEX TO PART SECOND—Quo WARRANTO AND PROHIBITION . 845
PART II. QUO WARRANTO AND PROHIBITION.
THE LAW OF QUO WARRANTO.
OF THE ORIGIN AND NATURE OF THE JURISDICTION IN QUO
§ 591. Information in the nature of a quo warranto defined.
592. The common-law writ of quo warranto.
593. Ancient origin of the writ.
594 The statute of Gloucester, 6 Edward L
595. Causes leading to the passage of the statute.
596. Effect of the statute; not wholly satisfactory.
597. Statute of 18 Edward L
598. These statutes not the origin of writs of quo warranto.
599. Disuse of ancient writ on abolition of justices in eyre.
600. Causes for disuse of the former remedy.
601. Growth of the jurisdiction by information in England; its
abuse; case of the city of London.
602. Information a prerogative remedy before statute of Anne; pur-
pose and effect of that statute.
603. The original writ a civil remedy; the information formerly a
criminal, now a civil remedy. <
604 The information does not create rights; nor does it prescribe
605. Leave to file the information discretionary with the court; circumstances which may be considered.
€06. Effect of statute as to discretion; discretion exhausted when information filed.
607. The doctrine in Alabama as to discretion,
608. Two classes of informations in England.
609. Writs of quo warranto and information confused; object the
610. Authorities conflicting as to use of the two terms; held synony-
mous in Wisconsin.
611. The same doctrine held in Florida.
612. The doctrine in Missouri; original writ still recognized.
613. The distinction observed in other states; trial by jury. 614 Statutory remedy in Pennsylvania and New York.
§ 615. Constitutional jurisdiction not taken away by legislation.
616. The courts exercising the jurisdiction. 616a. Right of removal to federal court.
617. Information does not lie when other remedy exists. 617a. Remedy for contesting election no bar.
618. Does not lie for official misconduct.
619. Jurisdiction in quo warranto a bar to jurisdiction in equity. 630. Public interest must be shown.
621. Statute of limitations; effect of acquiescence and laches.
622. Statutes to be construed as remedial.
§ 591. The modern information in the nature of a quo warranto may be defined as an information, criminal in form, presented to a court of competent jurisdiction, by the public prosecutor, for the purpose of correcting the usurpation, misuser, or nonuser, of a public office or corporate franchise. The object of the information, as now employed in the courts of England and America, is substantially the same as that of the ancient writ of quo warranto, and while still retaining its criminal form, it has long since come to be regarded as, in substance, a civil proceeding, instituted by the public prosecutor, upon the relation of private citizens, for the determination of purely civil rights. The use of the quo warranto information having entirely superseded the original writ in England, as well as in most of the states of this country, and the objects to be attained by the modern remedy being identical with those which were secured by the ancient writ, a brief sketch of the functions of the former remedy, and of its growth, development and decline, is necessary to a proper understanding of the remedy which has taken its place.
§ 592. The ancient writ of quo warranto was a high prerogative writ in the nature of a writ of right for the king, against one who usurped or claimed any office, franchise or liberty of the crown, to inquire by what authority he supported his claim, in order to determine the right: It was also granted as a corrective of the misuser or nonuser of a franchise, and commanded the respondent to show by what right, "quo warranto" he exercised the franchise, having
never had any grant of it, or having forfeited it by neglect or abuse.1 Being an original writ, it issued out of chancery, and was directed to the sheriff, commanding him to summon the respondent to appear before the king's justices at Westminster. Afterward, by virtue of the statutes of quo warranto,2 the writ was made returnable before the king's justices in eyre, and the respondent was commanded to appear before the king or these justices when they should come into the county, to show by what warrant the office or franchise in question was exercised. The justices in eyre having been displaced by the judges upon the several circuits, the proceedings were again remanded to the king's justices at Westminster, and the original writ gradually fell into disuse.3
§ 593. The origin of the writ may be traced to a very early date in the history of the common law. The earliest case upon record is said to have been in the ninth year of Richard I, A. D. 1198, and was against the incumbent of a church, calling upon him to show "quo warranto" he held the church.4 It was frequently employed during the feudal period, and especially in the reign of Edward I, to strengthen the power of the crown at the expense of the barons. Indeed, to such an extent had the encroachments of the crown been carried, that, prior to the statutes of quo warranto, the king had been accustomed to send commissioners over the kingdom to inquire into the title to all franchises, quo jure et quove nomine illi retinerent, and the franchises being grants from the crown, if no sufficient authority could be shown for their exercise, they were seized into the king's
13 Black. Com. 262. And see Commonwealth v. Small, 26 Pa. St. 31; State v. Ashley, 1 Ark. 279; Com. Dig., Quo Warranto (A). In the code of practice of Louisiana, article 828, the writ of quo warranto as used in that state is defined as an "order of which the object is to prevent a usurpation."
2 6 Edw. I, ch. 2; 18 Edw. I, st. 2. See Appendix, D, E, post.
3 See 3 Black. Com. 262; State v. Stewart, 33 Mo. 379.
4 See opinion of Lord Chief Justice Tindal, in Darley v. The Queen, 12 Cl. & Fin. 520.
hands, often without any judicial process.1 These encroachments of the royal prerogative having been limited and checked by statute, resort was then had to the original writ of quo warranto. Indeed, both the original writ and the information in the nature thereof were crown remedies, and although often unreasonably narrowed in the hands of weak princes, they were always recognized as of most salutary effect in correcting the abuse or usurpation of franchises.*
1 See 3 Inst. 280.
2 See opinion of Mr. Justice Cowen, in People ft Bristol & Rens-selaerville Turnpike Co., 23 "Wend. 223. " In times of feudal barbarity," says the learned judge," which accompanied and followed for many years the overgrown power of the nobles, there was constant occasion to apply the corrective of the quo warranto. It was the only effectual remedy, even if it could be called a remedy in itself; for monopolies had become so numerous, and so fortified by interest and power, that the application of the writ depended in greater measure on the personal character of the prince than moral submission to the law. This was especially so when the writ was brought to bear upon manorial claims residing in the hands of the barons or lords either temporal or spiritual. Ix>oking at Keilwey's reports of ' cases in eyre, in time of the very memorable King Richard the Third,' folios 137 to 152, one would be led to believe that a good deal of his reign was devoted to this sort of judicial contest with his nobles. Indeed his predecessor, Edward the First, had found single writs too slow, and caused a statute to be passed under which his noblemen were
called by proclamation, and obliged to come by squadrons before hi» immediate court or his justices in eyre whenever they entered the county. 2 Reeves' Hist. 230 (Dubl. ed.), 1787; Com. big., Quo Warranto (C. 2); Crabb's History of Eng. Law, 174, 175. This bearing too much the appearance of plunder, another statute was passed, somewhat moderating the preceding, and bringing it back to about the common-law course. 2 Reeves' Hist. 221; Crabb, supra. This is the statute on which Sir Edward Coke has furnished us with a labored commentary in his 2 Inst. 294 Still, as appears from the history of the times, the writ continued to be a very common resort, and to have been almost avowedly used to strengthen the crown at the expense of the barons. It was sometimes extended even to lands, though Coke showed that its proper office respected franchises only." Although the strictures of the learned justice upon the first statute of quo warranto, that of 6 Edw. I, ch. 2, are hardly justified by a perusal of that statute, yet, in the main, his observations upon, the origin and nature of the remedy are deserving of attention.
§ 594. By the statutes of quo warranto,' to which allusion has already been made, the encroachments of the crown were much restricted, and an examination of the provisions of these statutes is necessary to a correct understanding of the history of the jurisdiction in quo warranto. The statute 6 Edward I., commonly known as the statute of Gloucester, from the place where parliament then sat, and which was enacted in the year 1278, provided that all persons should enjoy their franchises, for the examination of which a day had been already fixed, until the coming of the king or Ins justices in eyre, before whom a quo warranto lay. As to all other persons, the sheriff was required to make proclamation forty days before the coming of the justices in eyre, that all those who held liberties or franchises should appear before the justices and show " quo warranto" they held them. If any person thus summoned failed to appear, his franchises were seized into the king's hands until he should appear, nomine districtionis, and replevy the franchise, which he might do at any time while the eyre sat in that county, in default of which his franchise was forever forfeited. If any one appeared and objected that he was not bound to answer without an original writ, the inquiry then was whether he had usurped his franchise, and if this were shown he was required to answer immediately, without any original writ. If it were found that his ancestor died seked of the franchise, an original writ was issued commanding him to appear " in proximo adventu nostro,velcoramjustici-ariis nostris ad proximam assisam cum in partes illas ven-erint, ostens-urus quo warranto tenet" etc. To this writ answer was made, and replication and rejoinder followed. The statute also allowed the respondent such reasonable delay as might be granted in the discretion of the justices, as in ordinary personal actions.2
16 Edw. I, ch. 2; 18 Edw. I, st. 2. See Appendix, D, E, post.
21 English Statutes at Large, p. 129. And see Appendix, D, post;
Com. Dig., Quo Warranto, C. I. C. 2; Crabb's English Law, ch. 18, p. 175; 2 Inst. 277 et seq.
§ 595. Lord Coke assigns as the cause leading to the pas-sao-e of this statute that the king, being in pressing need of money, had been persuaded that few or none of the nobility, clergy or commonalty, holding franchises under grant from the crown, oould produce any charters as evidence of their grants, since most of their charters were either destroyed by wars and insurrections, or lost by lapse of time. He had, therefore, sent proclamations throughout the kingdom, directing that all persons claiming liberties or franchises by grant from any of his predecessors should show before certain persons, nominated for that purpose, by what right or authority they held such liberties or privileges, the result of which was that many franchises which had long been held and enjoyed in quiet possession were seized into the hands of the crown. The king at length, finding that he had given heed to evil counsels, and mindful of the provisions of Magna Charta, and being moved especially by petition of the lords and commons in parliament assembled, enacted this statute, for the purpose of redressing the grievances under which his subjects had suffered by reason of the continued encroachments of the royal prerogative.1
§ 596. Notwithstanding the statute of Gloucester, the method of conducting proceedings in quo warranto was still far from satisfactory to the subject. It is true that the harassing and vexatious mode of inquiry under which he had recently suffered was abolished, and he was no longer subject to the scrutiny of a body of select commissioners, appointed by the crown to examine into the tenure by which he held his franchises and liberties. Instead of this arbitrary and uncertain method of procedure, an established tribunal was provided, whose duty it was to determine judicially the rights of the subject and the tenure by which they were held. He was still liable, however, to be summoned by a general proclamation at the hands of the sheriff, without any specific complaint or charges being tendered, to come before the king's itinerant justices, and to disclose what
12 Inst. 280.
franchises he held, as well as the title by which they had been acquired. In addition to this, great delay was experienced in the proceedings, owing to the fact that the justices were frequently in the habit of deferring judgment until they should be apprised of the king's pleasure in the matter. Moreover the costs and expenses of hearing pleas in quo warranto in cases determined at Westminster being a grievous burden, it was deemed advisable that the subject might receive justice in his own county, and that pleas of quo warranto should be heard and determined in the eyres or circuits of the justices.1
§ 597. These grievances, being complained of by the lords spiritual and temporal and by the commons, led to the passage of the statute of 18 Edward I, enacted in the year 1290, and known as the statute <& quo warranto novum, in distinction from the statute of Gloucester. This act, after reciting the delays which had been experienced in proceedings in quo warranto, declared-that the king, of his special grace and for the affection which he bore to his prelates, earls, barons and others of his realm, granted that all under his allegiance who could verify, by inquest of the country or otherwise, that they and their ancestors had used any liberties, whereof they were impleaded in quo warranto, before f>ie time of Eichard I, or in his time, should be adjourned unto a certain day before the justices, within ^ hich time they might go to the king, who should confirm their liberties by letters patent. Such persons as could not establish seisin of the franchises or liberties in their ancestors or predecessors were to be adjudged according to law and the custom of the realm, and such as held charter evidence of their rights were to be adjudged according to their charters. The statute further declared that the king had granted, for the purpose of sparing the costs and expenses of his people, that pleas of quo warranto should thenceforth be pleaded and determined in the circuits of the justices, and that all pleas then pending should be adjourned in their
1 See 2 Inst. 495 ct seq.
shires, until the coming of the justices therein.1 The effect of this important statute, which was deemed an act of concession from the sovereign to the subject, was to weaken the prerogative powers of the former, and, to the same extent, to fortify the rights and privileges of the latter. And in all cases where it appeared that the respondent to the writ had enjoyed, time whereof the memory of man ran not to the contrary, certain franchises resting in prescription, or, in cases of franchises claimed under charter, if a grant could be shown within the time of Richard I, or, if a grant prior to that time could be shown to have been confirmed and allowed since, the respondent could not be ousted.2
§ 598. These statutes have been incorrectly supposed by some authorities to be the origin and foundation of proceedings in quo warranto. The better doctrine undoubtedly is that they were intended merely to regulate an existing jurisdiction by pruning it of its harsher and more oppressive features, and that, so far from creating a new jurisdiction or a new remedy, they were only declaratory of an existing course of procedure, which they attempted to regulate and to improve. Indeed, this conclusion is inevitable from a perusal of the statutes themselves, and satisfactory evidence exists of the use of the writ at a period long prior to the date of these enactments.3 Their chief purpose seems to have been to shape an existing remedy, so that it .might more effectually insure justice to the subject, by restraining the excesses of the royal prerogative, and by affording him a more convenient forum for the protection of his franchises, in the county where he resided, instead of compelling his attendance before the king's justices at "Westminster.
§ 599. The precise period of time when this ancient writ fell into disuse in England, and its place was usurped by the
118 Edw. I, st. 2, 1 English Statutes at Large, p. 257, Appendix, E, post. And see 2 Inst. 494; Com. Dig., Quo Warranto, B; Crabb's English Law, oh. 18, p. 175.
- See Com. Dig., Quo Warrarito,
B; Crabb's English Law, oh. 13, p. 175.
3 Crabb's English Law, ch. 13, p. 175; Darley v. The Queen, 13 Cl. & Fin. 520. opinion of Lord Chief Justice Tindal.
more modern remedy of an information in the nature of a quo warranto, can not be definitely ascertained. It is certain, however, that the information, itself a common-law remedy, was of very early date,1 and it is probable that it began to supersede the more ancient remedy upon the abolition of the circuits of the king's justices in eyre, and the substitution in lieu thereof of the justices of assize.2 The authorities differ as to the exact time when the circuits in eyre Were abolished, Sir Matthew Hale fixing the period of their abolition at about the tenth year of Edward III. Lord Coke, however, places the period much later, basing his opinion upon an act of parliament subsequent to that time, providing that no eyres should be held during two years, and upon a statute of the sixteenth year of Eichard II, enacting that no eyre should be held until the next parliament.3 All the authorities, however, seem to agree that the abolition of these justices itinerant was the probable period when the ancient remedy began to fall into disuse. And this view of the case derives additional support from the fact that that ^clause of the statute of 18th Edward I, authorizing pleas of quo warranto to be heard and determined in the circuits of the justices, necessarily expired when these circuits were abolished, and the jurisdiction was again exercised, as before the'statute, only in the courts at Westminster.4
§ 600. The substitution of the information in lieu of the original writ is attributed by Blackstone to the length of the process upon the proceeding in quo warranto, as well as to the fact that the judgment rendered therein, it being in the nature of a, writ of right, was final and conclusive, even against the crown.5 An additional cause for the gradual disuse of
1 See opinion of Lord Chief Justice Tindal, in Darley v. The Queen, 13 Cl. & Fin. 520.
2 See Crabb's English Law, ch. 18, p. 277; 2 Inst. 498; State v. Stewart, 32 Mo. 379.
S3 Inst. 498.
*2 Inst. 498. "Now when jus-
tices in eyre ceased,"'says Lord Coke, "then this branch for the ease of the subject and for sa\ ing of their costs, charges and' expenses, lost its effect, for with justices in eyre this branch lived, and with them it died." 5 See 3 Black. Com. 263.
the ancient writ may perhaps be found in the fact that it was purely a civil remedy, while the information was at first used both as a civil and criminal process, and resulted in a fine against the usurper, as well as judgment of ouster or seizure. But, whatever may have been the causes which led to the substitution of the quo-warranto information in lieu of the ancient writ, it has in modern times almost entirely displaced the former remedy, and is now the usual process to which resort is had to correct the usurpation of any public office or corporate franchise, by trying the civil right, seizing the franchise and ousting the usurper.1 It lies in all cases where the ancient writ could have been maintained,2 and in England and in many of the states of this country its scope has been enlarged and extended by legislative enactments. In the absence, however, of such legislation, its application has been held to be limited to cases where the original writ would have been granted at common law.3
§ 601. The jurisdiction by information in the nature of a quo warranto having become firmly established in England, and having entirely usurped the place of the ancient writ, it gradually developed into symmetrical form, and, by the aid of legislative enactments, the principles regulating its exercise became well settled. As a corrective of irregularities in the administration of municipal corporations, it was always a favorite remedy with the crown. Nor is it matter of surprise that a jurisdiction so effective should, in the hands of corrupt monarchs, have been frequently subverted from its legitimate purposes and used as a means of strengthening the king's prerogative at the expense of his subjects. The-most flagrant instances of such abuse of the remedy occurred in the turbulent proceedings which marked the latter period
1 See State v. Ashley, 1 Ark 279; Lindsey v. Attorney-General, 33 Miss. 509; State v. Paul, 5 Stew. & Port. 40; Commonwealth v. Murray, 11 S. & R. 73; State v. Portland & Ogdensburgh Railroad, 58
N. H. 113; Territory v. Ashenf elter, 4 N. M. 85.
2 Lindsey v. Attorney-General, 33 Miss. 509.
3 Commonwealth v. Murray, 11 S. & R. 73. See, also, State v. Ashley, 1 Ark. 279.
of the reign of Charles II, when the information was used for the purpose of forfeiting the charters of large numbers of municipal corporations throughout the kingdom. By the aid of a subservient judiciary, the king was thus enabled to seize the franchises of many of the principal municipalities, and to remodel them according to the royal will, reserving to the crown in the new charters granted the first appointment of those who should govern the corporation.1 To such an extent was the jurisdiction carried that in the celebrated case of the city of London, decided at Trinity term, in the thirty-fifth year of this reign, the entire liberties, privileges and franchises of the city were seized into the hands of the king, where they remained for a period of four years, until his successor, James II, becoming terrified at the news of the intended invasion of the Prince of Orange, saw fit to restore the charter, which was accordingly done October 6r 1688, the king directing his lord chancellor, Jefferies, to restore it in person.2 One of the principal grounds urged in support of the judgment in this case was that a petition presented to the king by the common council of the city, to the effect that his prorogation of parliament had obstructed public justice, was a scandalous and libelous petition and a forfeiture of the corporate franchise. Another ground of forfeiture was the imposition of certain tolls upon goods brought into the city markets by virtue of an ordinance or by-law of the municipality. Upon such frivolous grounds as these the franchises of the oldest municipality in the kingdom were seized into the hands of the crown, and like proceedings, for causes no less frivolous, were had against many of the principal municipal corporations throughout England. To such lengths was this abuse of the jurisdiction carried by the house of Stuart, that it is said that no less than eighty-one quo-warranto informations were pre-
1 Hallam's Const. Hist., ch. XII; 3 Black. Com. 263.
2 King v. City of London, 3 Harg. State Trials, 545. See comments
upon this extraordinary proceeding in Hallam's Const. Hist., ch. XIL
sented against municipal corporations during the reigns of Charles II and James II. These continued encroachments of the royal prerogative, although justified by Blackstone,1 were productive of such serious alarm that after the revolution the judgment against the city of London was reversed by act of parliament, and it.was provided by the same act that the franchises of the city should never be seized for any misdemeanor or forfeiture.2
§ 602. Before the statute of Anne,3 the information in the nature of a quo warranto was employed exclusively as a prerogative remedy, to punish a usurpation upon the franchises or liberties granted by the crown, and it was never used as a remedy for private citizens desiring to test the title of persons claiming to exercise a public franchise. And although such informations were exhibited by the king's attorney-general long before this statute, yet the remedy thereby given was never enlarged beyond the limits prescribed for the original writ of quo warranto, which extended only to •encroachments upon the royal prerogative. Hence the information, as a means of investigating and determining civil rights between parties, may be said to owe its origin to the statute of Anne, which authorized the filing of the information, by leave of court, upon the relation of any person desirous of prosecuting the same, for usurping or intruding into any municipal office or franchise in the kingdom.4 The object of this statute, in so far as concerns the usurpation of •corporate franchises, is said to have been the promotion of speedy justice against such usurpation, as well as to quiet the possession of those who were lawfully entitled to the franchise.5 And it was doubtless intended to be confined to such franchises as were claimed in cases affecting corporate rights, or rights t<y freedom in municipal corporations, and not to be extended to all offices or franchises exercised with-
1 See 3 Black. Com. 264.
2 2 William & Mary, ch. 8, 9 English Statutes at Large, 79.
3 9 Anne, oh. 30. See Appendix, A.
«See State- v. Ashley, 1 Ark. 279. See, also, 9 Anne, oh. 20, sec. 4, Appendix, A, post.
* Rex v. Wardroper, Burr. 1964
out authority from the crown within a corporation. And the word " franchises," as used in the act, has been construed by the court of king's bench to mean only the freedom and right of membership in the corporation.1
§ 603. The original writ of quo warranto was strictly a civil remedy, prosecuted at the suit of the king by his attorney-general, and in case of judgment for the king the franchise was either seized into his hands, if of such a nature as to subsist in the crown, or a mere judgment of ouster was rendered to eject the usurper.2 N~o fine was imposed, nor was any other punishment inflicted than that implied in the deprivation of the franchise which had been improperly usurped or illegally exercised.8 The information was originally regarded as a criminal proceeding, in which the usurpation of the office or franchise was charged as a criminal offense, and the offender was liable upon conviction to a fine and imprisonment as well 'as the loss of the franchise which he had usurped. In modern times, however, the information, as a means of criminal prosecution, has entirely fallen into disuse, and it has come to be regarded as a purely
iRex v. Williams, Burr. 402. Lord Mansfield, in commenting upon the statute of Anne, in this case observes: "The act is meant ,to extend to all officers or corporations as such; and, as far as relates to all the corporate rights of the burgesses and freemen, it is very legally, clearly and correctly drawn. But it is not within the reason or meaning of the act that it should extend generally to all offices or franchises exercised without authority from the crown, within a corporation. It was meant to be confined to such franchises as were claimed in instances affecting those rights between party and party." And Mr. Justice Denison observes: . . . "There are num-
bers of offices which a man mav usurp and be liable to an information for usurping which are not franchises in corporations. But these 'franchises'mentioned in the act mean corporate rights, or rights to freedom in corporations." Mr. Justice Foster says: "The word ' franchises,' in the act, means only freedoms and rights to be members of the corporation. This act was drawn with great care and attention. (Judge Powell was the person who drew it.) And there is no reason to extend it beyond its intention."
2 See 3 Black. Com. 263; State v. Ashley, 1 Ark. 379. _ 3 See State v. Ashley, 1 Ark. S79.
civil remedy, which, while partaking in some of its forms and incidents of the nature of criminal process, is yet a strictly civil proceeding, used for the purpose of testing a civil right by trying the title to an office or franchise and ousting the wrongful possessor.1 Indeed, to such an extent has the remedy come to be regarded as a purely civil one, that it is held not to fall within the prohibition of the restrictive clauses contained in the constitution or bill of rights of many of the states, providing that no citizen shall be called to answer any criminal charge except by presentment, indictment or impeachment. Such restrictions, it is held, do not have the effect of prohibiting the information in the nature of a quo warranto, since it is at the most a criminal proceeding only in form and name, its primary object being not the infliction of pains and penalties as in ordinary criminal proceedings, but to prevent the wrongful usurpation or abuse of an office or franchise.2 It is not,
i State v. Hardie, 1 Ired. 42; State Bank v. State, 1 Blackf. 267; State v. Ashley, 1 Ark. 279; Lindsey v. Attorney-General, 33 Miss. 508; State v. Lingo, 26 Mo. 496; State v. Stewart, 32 Mo. 379; State v. Lawrence, 38 Mo. 535; State v. Kup-ferle,' 44 Mo. 154; State v. Campbell, 120 Mo. 396; Commonwealth ^1. Birchett, 2 Va. Cas. 51; Attorney-General v. Barstow, 4 Wis. 567; Commonwealth v. Commissioners, 1 S. & E. 382; Commonwealth v. M'Closkey, 2 Eawle, 381, opinion of Gibson, C. J.; State v. Price, 50 Ala. 568; State v. De Gress, 53 Tex. 387. See, also, Robertson v. State, 109 Ind. 79; People v. Boyd, 132Ill. UO. In Illinois, however, the information is still regarded as a mode of criminal prosecution, for the twofold purpose of punishing the usurper and ousting him from the franchise usurped, and the
rules of pleading applicable to criminal indictments are applied to informations. Donnelly v. People, 11 Ill. 552; People v. Mississippi & Atlantic E. Co., 13 Ill. 66; Wight v. People, 15 Ill. 417. And in Illinois the information should run " in the name and by the authority of the people of the.state of Illinois," and the omission of these words is sufficient ground for quashing the information. Hay v. People, 59 Ill. 94. And see dies-shire v. People, 116 Ill. 493.-
2 State Bank v. State, 1 Blackf. 267: State v. Hardie, 1 Ired. 42. In People v. Gillespie, 1 Cal. 342, the information is regarded as a mixed action for the double purpose of vindicating public policy and of enforcing a private remedy. But in Idaho it is held that the information still so far partakes of the nature of a criminal proceeding
however, an appropriate remedy for the vindication of purely private rights, but is used for the redress of grievances in which the public have an interest. And when the information is brought against persons claiming to act as a municipal corporation to determine the legality of such action, averments that the respondents have interfered with the private property of the relator, and have entered upon and damaged his land without making compensation therefor, afford no ground for relief. Such averments at the most show an unwarranted exercise of corporate or official authority, for which the law affords ample redress in an action brought by the relator individually, but they afford no ground for interference by the people in their sovereign capacity by an information in the nature of a quo warranto.1
§ 604. In considering the nature and purpose of the information in the nature of a quo Avarranto, it is to be premised that it does not create an office or franchise, but is merely declaratory of existing rights, the court being the medium for declaring and enf6rcing rights already existing by law. Nor does it command the performance of his official functions by any officer to whom it may run, since it is not directed to the officer as such, but always to the person holding the office or exercising the franchise, and then not for the purpose of dictating or prescribing his official duties, but only to ascertain whether he is rightfully entitled to exercise the functions claimed.2
§ 605. In England the former practice of the court of king's bench seems to have been to grant informations in the
that a statute giving parties in interest in actions between other persons the right to intervene and to become parties does not apply to proceedings by information in the nature of a quo warranto. People v. Green, 1 Idaho, 235.
1 People v. Cooper, 139 Ill. 461.
2 Attorney-General v. Barstow, 4 Wis. 659, 773. Mr. Justice Smith observes, page 773: "It is foreign
to the objects and functions of the writ of quo warranto to direct any officer what to do. It is never directed to an officer as such, but always to the person—-not to dictate to him what he shall do in his office, but to ascertain whether he is constitutionally and legally authorized to perform any act in or exercise any functions of the office to which he lays claim."
nature of a quo warranto almost as a matter of course. Indeed, to such an extent had the granting of these informations been carried, that it was often deemed prudent not to show cause against the rule nisi, lest the respondent should thereby disclose his grounds of defense. Gradually, however, the king's bench became more cautious in granting leave to file the information, and would only do so after considering all the" circumstances of the case.1 And the principle is now firmly established, that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made, even though there is a substantial defect in the title by which the office or franchise is held.2 In the exercise of this discretion, upon the application of a private relator, it is proper for the court to take into consideration the necessity and policy of allowing the proceeding, as well as the position and motives of the relator in proposing it, since this extraordinary remeYly will not be allowed merely to gratify a relator who has no interest in the subject of inquiry.3 The court will also weigh the considerations of public convenience involved, and will compare them with the • injury complained of, in determining whether to grant or refuse the application.4 And whenever it is apparent that the filing of the information would result in no practical benefit, as when there is no one claiming the office in oppo-
i King v. Stacey, 1 T. R. 1.
s People v. Waite, 70 Ill. 25, 6 Chicago Legal News, 175; Peoples. Moore, 73 Ill. 132; People v. Calla-ghan, 83 Ill. 128; People v. North Chicago R. Co., 88 Ill. 537; People v. Keeling, 4 Colo. 129; State v. Tolan, 4 Vroom, 195; State v. Schnierle, 5 Rich. 299; State v. Centreville Bridge Co., 18 Ala. 678; State v. Fisher, 28 Vt. 714; State v. Smith, 48 Vt. 266; State v. Mead, 56 Vt. 353; Lynch v. Martin, 6
Houst. 487; Commonwealth v. Rei-gart, 14 S. & R. 316; State v. Brown, 5 R. 1.1. And see Stone v. "Wet-more, 44 Ga. 495; Commonwealth v. Jones, 12 Pa. St. 365; Commonwealth v. Cluley. 56 Pa. St. 270; People v. Sweeting, 2 Johns. Rep. 184. But see State v. Burnett, 2 Ala. 140.
3 State v. Brown, 5 R. I. 1.
* State v. Schnierle, 5 Rich. 299; Queen v. Ward, L. R. 8 Q. B. 210.
sition to the respondent, and the term will expire before a trial of the right can be had, or where a new election for the office is about to occur, which will afford full redress to the relators, the court may properly refuse the application. for leave to file an information.1 The expediency of permitting it to be filed is also a proper matter for the consideration of the court, and the fact that a successful prosecution of the proceedings, which are brought to test the title to a municipal office, may result in the suspension of all municipal government in a city for a long period of time, may properly be taken into account in deciding upon the application.2 And to warrant the court in granting leave to file the information it should appear that there is probable ground for maintaining the proceeding.3 So when the relief is sought upon the ground of an informality in the election of respondent to the office in question, but the relator himself participated in the election without objection, the court, in the exercise of its discretion, may properly refuse-to allow the filing of an information.4 And since the granting of leave to institute the proceeding is largely a matter of judicial discretion, a writ of error will not lie to an order discharging a rule to show cause why leave should not be granted, in the absence of any statute authorizing a writ of error in such cases.5
§ 606. The right of the court to exercise its discretion in granting or withholding leave to file an information is not limited even by a statute authorizing the granting of the remedy at any time on " proper showing made." The spirit of such a statute is held to contemplate the right of the court to refuse the application, if it shall see fit; and since the remedy is in no sense a matter of absolute right on the
i People v. Sweeting, 2 Johns. Rep. 184; State v. Schnierle, 5 Rich. 299; Commonwealth v. Rei-gart, 14 S. & R. 216. See, also, State v. Centreville Bridge Co., 18 Ala. 678.
2 State v. Tolan, 4 Vroom, 195; People v. Keeling, 4 Colo. 129. 8 People v. Callaghan, 83 Ill. 128.
4 People v. Waite, 70 Ill. 25; People v. Moore, 73 Ill. 132.
5 Commonwealth v. Davis, 109 Pa. St. 128.
part of a claimant to an office, he must, notwithstanding such a statute, present to the court such facts as will enable it to decide the right to the office in question.1 It is, however, important to observe that when the court has, in the exercise of its discretion, allowed the information to be filed, it has exhausted its discretionary powers, and the issues of fact and of law presented by the pleadings must then be tried and determined in accordance with the strict rules of law, in the same manner and with the same degree of strictness as in ordinary cases.2
§ 607. In Alabama a distinction is taken, in applying the doctrine of judicial discretion above considered, between cases where the proceedings retain the character of a prosecution in behalf of the state, where the franchise or office in controversy involves no question of private right, as in cases -of corporations, and cases where only private rights are involved. And it is held that the doctrine of discretion should be limited to the former class of cases, and that when the application is made in behalf of one claiming the right to a particular office or franchise, it is to be considered rather as a matter of right than of discretion.3
§ 608. Informations in the nature of a quo warranto as now used in England, in lieu of the ancient writ, are of two kinds: first, such as are exhibited by and in the name of the attorney-general, ex officio, without any relator, and which are filed without leave of the court and without entering into any recognizance; second, informations in the name of the queen's coroner and attorney, sometimes known as the master of the crown office, upon the relation of private citizens. The latter class may be filed only by leave of court first obtained for that purpose, as provided by the statute of Anne,4 and by entering into a recognizance in conformity with the statute 4 & 5 "William and Mary, chapter 18. The
1 Stone v. "Wetmore, 44 Ga. 495.
2 State v. Brown, 5 E. I. 1. See, also, People v. Golden Rule, 114 Ill. 34.
3 State v. Burnett, 2 Ala. 140.
4 9 Anne, oh. 20, Appendix, A, post.
most frequent use to which the information is put in England is to determine the right to municipal offices and franchises, and its use as a means of testing the title to the franchises of private corporations in that country is of comparatively rare occurrence.
§ 609. In this country the principles governing the jurisdiction under discussion have been somewhat confused by the failure of many of .the courts to properly discriminate between the original or ancient writ of quo warranto, and the information in the nature of a quo warranto, and the terms have been often used as synonymous and convertible terms. The distinctive features of the two remedies are clearly defined and have already been noticed.1 And although the quo warranto information has almost entirely usurped the place of the original writ, yet the latter is, in substance, still recognized and employed as an existing remedy in some of the states of this country.2 But whether resort is had to the ancient writ of quo warranto, or any process analogous thereto, or to the more modern and convenient remedy by information, the object of the proceeding is substantially one and the same, viz., to correct the usurpation, nonuser or misuser of a public office or of a corporate franchise. And it is doubtless due to the comparatively short tenure of most offices in this country, as Well as to the method of popular elections which forms, the distinctive feature of the American system, that the jurisdiction is more freqiiently invoked for the determination of disputed questions of title to public offices, in this country, than for all other causes combined.
§ 610. In most of the states of this country the jurisdiction is fixed by constitutional provisions, prescribing the courts which shall be empowered to grant the relief. And the authorities are somewhat conflicting as to the precise nature of the remedy intended to be conferred, since the
1 See State v. Ashley, 1 Ark. 279.
2 See State v. Ashley, 1 Ark. 279; State v. St. Louis Insurance Co., 8
Mo. 330, See, also, Commonwealth v. BurreU, 7 Pa. St. 34.
terms writ of quo warranto and information in the nature of a quo warranto have been frequently used as interchangeable and synonymous terms. In "Wisconsin the doctrine is maintained that the two terms, as now generally used in this country, are to be understood as synonymous, and that the grant of power in the constitution of the state, authorizing the supreme court of the state to issue writs of quo warranto, is not to be limited or confined to the ancient common-law remedy of that name, but that it is applicable to all cases where the information has been recognized as the appropriate remedy according to the established usages of the common law. And the remedy by information in the nature of a quo warranto having long since taken the place of the ancient writ, it is held that the clause of the constitution conferring the power to grant writs of quo warranto, must be construed with reference to the established jurisdiction of the courts by the quo warranto information, and that to this jurisdiction reference must be had in determining the powers of the court under the constitution, rather than to the jurisdiction by the ancient writ of quo warranto.1
1 State v. West Wisconsin E. Co., 34 Wis. 197. And see S. C., 36 Wis. 466. See, also, Attorney-General v. Blossom, 1 Wis. 317; Attorney-General v. Barstow, 4 Wis. 567; State v. Messmore, 14 Wis. 115; State v. Baker, 38 Wis. 71. By section 3, article VII, of the constitution of Wisconsin, it is provided that the supreme court of the state shall "have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other original and remedial writs, and to hear and determine the same." Dixon, C. J., construing this clause, in the opinion in State v. West Wisconsin R, Co., 34 Wis. 197, observes: "It is as impossible
to believe that the framers of th& constitution were looking back over the period of three or four hundred years into the middle ages, designing to give this court such jurisdiction, and only such, as was then exercised in virtue of the writ of quo warranto, as it is-that they intended to confine the court to that antiquated and useless process. The framers of the constitution were practical men, and were aiming at practical and useful results. They used the-words 'writs- of quo warranto/ just as they had been used in common parlance, and by courts, lawyers and writers for hundreds of years, as synonymous with 'in-
§ 611. In Florida, also, the terms quo warranto and information in the nature thereof are used as synonymous, and the constitutional provision conferring original jurisdiction upon the court of last resort of the state, by the writ of quo warranto, is held to warrant that court in exercising jurisdiction by information in the nature of a quo warranto.1
formation in the nature of quo" warranto,' which had so long been the complete and unqualified substitute for the writ. ' This (the information) is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the crown; but hath long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only.' 3 Black. Com. 263. By the statute of this state the fine may be something more than nominal. R. S., ch. 160, sec. 15; 2 Tay. Stats. 1812, § 21. And in the early and leading case in New York, People v. Utica Insurance Co., decided in 1818, and reported in 15 Johns. 358, in which the remedy by information was applied to one of those modern private moneyed or commercial corporations, we find Justice Spencer using the following language: ' An information in the nature of a quo warranto is a substitute for that ancient writ which has fallen into disuse, and the information which has superseded the old writ is defined to be a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, and seize it for the crown. It
has, for a long time, been applied to the mere purpose of trying the civil right, seizing the franchise or ousting the wrongful possessor, the fine being nominal only.' Now it was with a view to this well-known jurisdiction, then and long before exercised only in the proceeding by information, that the framers of the constitution gave or reserved the power to this court, using for convenience and brevity merely the words 'writ of quo warranto,' just as those •words were used by Chancellor Kent in Attorney-General v. Utica Insurance Co., 2 Johns. Ch. 371, 376, and as they had been used by other courts and writers times without number, and as they are still even used in our own statute (R. S., ch. 160, sec. 1; 2 Tay. Stats. 1807. § 1) as meaning the same thing and intended to convey the same general idea of the words, 'information in the nature of quo warranto.' " And see State v. Tracj-, 48 Minn. 497.
1 State v. Gleason, 13 Fla. 190; State v. Anderson, 26 Fla. 240. By section 5, article 6, of the constitution of Florida, it is provided that the supreme court of the state shall "have power to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas corpus, and also all writs necessary or proper
It is also held that it is not necessary to the exercise of the jurisdiction thus conferred that the legislature should prescribe any particular mode of procedure, and that, in the absence of any such established mode, the court will proceed in conformity with the common-law usages governing proceedings upon quo-warranto informations.1 And under the constitution of Colorado, which confers upon the supreme court of the state jurisdiction over " writs of quo warranto," the term writ of quo warranto is regarded as synonymous with the information in the nature of a quo warranto, and as including that proceeding.2
§ 612. In Missouri the earlier doctrine seems to have been somewhat analogous to that prevailing in "Wisconsin and Florida, and it was held that the supreme court of the state derived jurisdiction by quo-warranto information from a constitutional provision conferring upon the court the power of issuing writs of quo warranto and other original remedial writs.3 The later decisions in that state, however, recognize a distinction in the use of the terms, and hold
to the complete exercise of its appellate jurisdiction." Mr. Justice Westcott, pronouncing the opinion in State v. Gleason, says: " Does the proceeding here, to wit, an information in the nature of a quo warranto, come within the constitutional grant of power to issue a writ of quo warranto? It will be found by reference to the American cases that the constitutional grant of power in other states, where the proceeding has been by information, is precisely similar to the grant here. An examination will show that in the American practice the terms 'quo warranto,' and 'information' in the nature of quo warranto, are used as synonymous and convertible terms, the object and end of each being substantially the same.
Speaking of an information of this character, where the constitutional grant of power was the same as in our constitution, the supreme court of Missouri say: ' This court conceives that jurisdiction is given of this case by the power to issue writs of quo warranto.' State v. Merry, 3 Mo. 378; 8 Mo. 331. In Wisconsin the supreme court hold to the same view, remarking that the information has in view the same object. 1 Wis. 333. This, upon examination, will be found to be the American doctrine, and in England such a thing as a distinct proceeding by the ancient writ of quo warranto has not been practiced for centuries."
1 State v. Gleason, 12 Fla. 190.
2 People v. Keeling, 4 Colo. 139. "State v. Merry, 3 Mo. 278.
that the writ of quo warranto, authorized by the constitution as an original remedial writ, to be issued by the supreme court, is the original common-law writ as anciently used in England, and that it may issue without leave of court, being in the nature of a writ of right. It is therefore issued as of course, upon demand of the proper officer of the state, just as a summons issues from an inferior court when the state begins an ordinary civil action against a citizen, and the court is without discretion in granting the writ.1
1 State 17. St. Louis Insurance Co., 8 Mo. 330; State v. Stone, 35 Mo. •j55. See, as to the jurisdiction of the supreme court of Missouri over informations in the nature of quo w arranto, State v. Vail, 53 Mo. 97. In State v. St. Louis Insurance Co., 8 Mo. 330, Mr. Justice Scott, for the court, says: "This court, by the constitution of the state, has power to ibsue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same. It would seem that the general assembly confounded the proceedings on a writ of quo warranto with those on an information in the nature of a quo warranto, by making it the duty of the attorney-general to apply to this court for a writ of quo warranto. A writ of quo warranto is in the nature of a writ of right for the state against any person who claims or exercises any office, to inquire by what authority he supports his claim, in order to determine the right. (3 Black. Com. 262.) The writ of quo warranto, in consequence of the length of its process, has long since become obsolete in the English law, and information in the nature of a quo war-
ranto, wherein the process is speedier, has been substituted in its placa Tomlin's Law Die., title 'Quo Warranto.' The general assembly must have contemplated this last proceeding in directing the attorney-general to apply to this court for a writ of quo warranto. A writ of quo warranto, as we have seen, is in the nature of a writ of right. It issues on demand of the proper officer of the state, as a matter of course, and there is no more necessity for an application to this court for this writ than there would be for a summons in the circuit court 'when the state is about to commence an action of debt against one of her debtors. No reasons are offered why the writ should issue; no information is communicated bv affidavit or otherwise, and there is no power in this court to refuse issuing the writ. Where, then, is the necessity of asking leave? The asking leave is the admission that this court has a discretion in refusing or granting a writ of quo warranto, whereas none is considered to exist. In the case of The State v. Merry, 3 Mo. Rep., it was held that under that clause in the constitution which gave this court
§ 613. The same distinction was formerly recognized in Arkansas, where it was held that the ancient writ of quo warranto, and the information in the nature thereof, are so distinct in their nature, and in the .procedure under them, that, under a constitutional provision conferring upon the supreme court of the state the power to hear and determine writs of quo warranto as an original jurisdiction,, the court was limited to the old common-law writ, and could not exercise jurisdiction by a quo-warranto information.1 When,
original jurisdiction of writs of quo warranto, an information in the nature of a quo warranto might be filed, and that jurisdiction of it would be entertained. In the case of The State v. McBride, 4 Mo. Rep. 303, an information in the nature of a quo warranto was exhibited against him, and jurisdiction was entertained of it by this court. The question was not made in that case; the party, it is presumed, acquiescing in the opinion pronounced in the case of The State v. Merry. No question of jurisdiction can arise on the application now made by the attorney-general, as he has not thought proper to ask leave to file an information in the nature of a quo warranto, but a demand is made simply for the writ itself, which, we conceive, issues as a matter of course, from the clerk's office of this court, on demand of the proper officer."
* State v. Ashley, 1 Ark. 279; S. C., Ib. 513. Seej also, State v. Real Estate Bank, 5 Ark. 595; State v. Johnson, 26 Ark. 281. In State v. Ashley, the court, Ringo, C. J., say, p. 303: " Informations, as the basis or institution of a criminal prosecution, are said to have existed co-
eval with the common law itself, but as a mode of investigating and determining civil rights between private parties they seem to owe their origin and existence to the statute of 9th Anne, which expressly authorized the proceeding in all cases of intrusion into, or usurpation of, corporate offices in corporate places. And although informations in the nature of a quo warranto were exhibited by the king's attorney-general long prior to that time, the remedy given thereby was never extended beyond the limits prescribed to the old writ, and could, therefore, only be granted for some usurpation on the prerogative rights of the crown, and it is said there is no precedent of such information having been filed or allowed at the instance, or on the relation, of any private person previous to such statute of 9th Anne; nor could they be so exhibited afterwards, except in the cases mentioned in the statute, which neither increased or abridged the authority of the attorney-general on that subject. This proceeding by information, when originally introduced, like all other criminal informations of that period, was designed princi-
therefore, it was desired to institute proceedings in that state against a private corporation, such as a banking association, to procure a forfeiture of its franchises for misuser or nonuser, the appropriate remedy was held to be by the ancient writ of quo warranto instead of the information.1 But it is now held in Arkansas that the constitutional provision giving the supreme court jurisdiction to issue the writ of quo
pally to punish offenders who were guilty of usurping the prerogative rights of the crown; yet, upon conviction or disclaimer, the right of the crown being thereby established, there was, besides the fine, a judgment of ouster against the defendant, or that the franchise be seized into the king's hands, thus affording, incidentally, a civil remedy for the king. And hence it is that all the authorities, ancient and modern, speak of the proceeding as being properly a criminal method of prosecution. It is, however, said to have been long since applied to the mere purpose of trying the mere civil right, seizing the franchise or ousting the wrongful possessor, the fine being nominal only. And, therefore, it was urged in the argument that it must be considered as a substitute for the ancient writ of quo warranto, which came into existence upon its disuse, and in 1607 fully occupied its place in the common law, and consequently that the convention must be understood as referring to it when they use the term writs of quo warranto, rather than the antiquated and obsolete proceeding by writ of qito warranto, which it can not be supposed to have been their intention to revive. To this argument we do not
assent. The introduction of the latter did not subvert or destroy the former; they may have had, and we do not doubt that they did have, a contemporaneous existence; their primary objects were essentially different, and the mode of proceeding in them materially varied, while they were in some respects attended with different results, and the form of the judgment was never the same; one was strictly a civil, the other properly a criminal, method of proceeding. "We are, therefore, of the opinion that the proceeding by writ of quo warranto and information in the nature of a quo warranto as known to and regarded by the common law are so different from each other that they can not with propriety be classed together or comprehended by one common name or description." See this case, p. 513, for the form of the writ of quo warranto as used in Arkansas, and the procedure thereunder. And compare the form of the writ, as used in this case, with the form of the ancient writ of quo warranto as recited in the statute of Gloucester, Appendix, D, post.
1 State v. Real Estate Bank, 5 Ark. 596.
warranto includes the information as well as the common-law writ.1 And under such a constitutional provision it is held that a trial by jury can not be demanded upon a writ of quo warranto.2 Nor is the right to a jury trial in such case conferred by the fourteenth amendment to the constitution of the United States.3 So in Missouri it is held that a jury trial can not be demanded as a matter of right in the trial of an information in the nature of a quo warranto.4 And in Alabama, when all the facts are admitted, it is held that there is no error in refusing a jury trial, since in such case it only remains for the court to pronounce judgment upon those facts.5 But in Florida it is held that upon an information in the nature of a quo warranto the right of trial by jury, as to issues of fact, existed at common law, and that such right is preserved under a constitutional guaranty providing that " the right of trial by jury shall be secured to all, and remain inviolate forever."8 And in Idaho it is held that the proceeding, when brought to try the title to a public office, is within the constitutional guaranty of the right of trial by jury, and that an act of legislature taking away such right is unconstitutional and void.7
§ 614. In Pennsylvania most of the substantial features of the ancient writ of quo warranto are preserved by statute as a remedy for the usurpation of public offices filled by appointment of the executive or by election of the people, and the statutory remedy thus afforded is held by the courts of that state to be, in all save form, the same as the writ of quo Warranto at common law.8 The granting of the writ, however, is regarded as no more a matter of right in that state than is the granting of leave to file the information
1 State v. Leatherman, 38 Ark. 81.
2 State v. Johnson, 26 Ark. 281. But see State v. Allen, 5 Kan. 213.
s State v. Johnson, 36 Ark. 281.
4 State v. Lupton, 64 Mo. 415.
5 Lee v. State, 49 Ala. 43. As to the right to trial by jury in New
York, see People v. Albany & S. E. Co., 57 N. Y. 161.
"Buckraan v. State, 34 Fla. 48; Van Dorn v. State, 34 Fla. 62.
7 People v. Havird, 2 Idaho, 498.
8 Commonwealth v. Burrell, 7 Pa. St. 34. See, also, Murphy v. Farmers' Bank, 20 Pa. St. 415.
under the statute of Anne, but it rests in the sound discretion of the court.1 In Tennessee neither the original writ nor the information in the nature thereof has ever been adopted, the remedy provided by statute in that state, for the usurpation of an office or franchise, being in chancery.2 In Kew York both the ancient writ of quo warranto and proceedings bv information in the nature of a quo warranto are abolished by the code of procedure. But the relief which was formerly had by those remedies may now be obtained by a civil action, the form only of the proceeding being abolished, and the jurisdiction and power of the courts remaining unchanged.8 § 615. In cases where the jurisdiction is conferred by the organic law of a state, it can not be taken away by legislative enactment or by statutory changes in the form of the remedy. And when the supreme court of a state is vested by the constitution with original jurisdiction in quo Warranto, it will continue to exercise the jurisdiction thus conferred, notwithstanding an act of the state legislature attempting to abolish both the original writ of quo warranto and the proceeding by information.4 In such cases the grant of power by the organic law of the state is regarded not so much as conferring the power to issue a writ of a prescribed form, as to enable the court to hear and determine controversies of a certain character. And the jurisdiction thus conferred can not be taken away by legislative enactment or change in the form, of remedy, although new process may be adopted calculated to attain the same end.5 So
1 Commonwealth v. Jones, 12 Pa. St. 365; Commonwealth v. MoCar-ter, 98 Pa. St. 607.
2 State v. Turk, Mart. & Yerg. 286; Attorney-General v. Leaf, 9 Humph. 755.
3 People v. Hall, 80 N. Y. 117. As to the right ot the relator to recover damages for the unlawful deprivation of his office, including its salary and emoluments, in the same action, under the New York
code of procedure, see People v. Nolan, 101 N. Y. 539.
4 State v. Allen, 5 Kan. 213; State v. Messmore. 14 YVis. 115; People v. Boughton, 5 Colo. 487. See, also, State v. Baker, 38 Wis. 71; People v. Reid, 11 Colo. 138; People v. Londoner, 13 Colo. 303; People v. Swift, 82 Cal. 238.
s State v. Messmore, 14 Wis. 115. The court, Dixon, C. J., commenting upon the case of State v. Foote,
when jurisdiction in quo warranto is conferred upon the courts by the constitution of the state, the creation by the legislature of another remedy for contesting elections will not deprive the courts of such jurisdiction.1 And an information will lie to test the title to a public office, notwithstanding the existence of a statutory remedy for the same purpose.2 So the pendency of a contest, under a statutory proceeding between rival claimants of a public office, to determine which of the two was elected, does not impair or
11 Wia 14, say: "The complaint in that case, as in this, was styled an 'information,'and the summons here is copied from the one there issued. No objection was taken to the form of the summons, but the complaint was demurred to principally on the ground that this court had no jurisdiction over the subject of the action. It was insisted that section 3 of article 7 of the constitution only gave this court power to issue the writ of quo warranto at the common law; that the statutes of 1849 abolished the common-law writ and substituted the proceeding by information ; that the present statute abrogated both the writ and the information, and declared a civil action to be the only remedy, and as it was a mere civil action it could not be entertained. We considered that the framers of the constitution looked rather to the substance than the form; that their object was not so much to give us power to issue a writ of a prescribed form. as to enable us to hear and determine controversies of a certain character; and that this jurisdiction could not be taken away by
any legislative changes in the forms of the remedy, but that we might adopt any new process which was calculated to attain the same end. This was in accordance with the previous decisions and practice of this court. It had always taken jurisdiction of the proceeding by information in nature of a quo warranto. The demurrer was, therefore, overruled, but without a written opinion."
1 Kane v. People, 4 Neb. 509; State v. Frazier, 38 Neb. 438. But see State v. Lewis, 51 Conn. 118, where it is held that the legislature having provided a statutory remedy for determining the title to municipal offices, and having declared that -such remedy should be conclusive, an information would not lie for the same purpose, the state having by its legislation voluntarily parted with or abandoned its right to be heard by a proceeding in quo warranto in such cases.
2 State v. Shay, 101 Ind. 36. And see this case as to the right to produce upon the hearing the original ballots cast by voters for the office in controversy.
affect the right of the state to proceed at the same time by information against the incumbent of the office.1
§ 616. The jurisdiction in this country, as we have al-rcadv seen, is regulated to a considerable extent by the constitutions and statutes of the various states, which designate the courts which are empowered to administer the remedy, sometimes conferring the power as an original one upon the court of last resort of the state, and sometimes upon the various courts of general jurisdiction. And in cases where both the supreme court of the state and the inferior courts of general common-law powers, such as circuit courts, are vested with jurisdiction in quo warranto, the supreme court may properly refuse to exercise its original jurisdiction in the matter, when the inferior courts are vested with ample power in the premises and can afford adequate relief by entertaining the information.2 But since the granting of the writ of quo warranto is the exercise of an original and not of an appellate jurisdiction, when the supreme court of a state is by the constitution and laws of the state vested with appellate powers only, it can not issue the writ.3 "When, however, the constitution of a state invests the supreme court with original jurisdiction in such " remedial cases" as may be prescribed by law, the power thus conferred is held to include proceedings in quo warranto. Original jurisdiction in quo warranto may, therefore, be exercised by the supreme court under a statute conferring it pursuant to such constitutional provision.4
i Vogel v. State, 107 Ind. 374.
^State v. Stewart, 32 Mo. 379; State v. Buskirk, 43 Mo. Ill; State v. Claggett, 73 Mo. 388; Coon v. Attorney-General, 42 Mich. 63. As to the jurisdiction of the supreme court of Ohio in quo warranto, see State v. Baughman, 38 Ohio St. 453.
3 Ex parte People, 1 Cal. 85.
4 State v. St. Paul & S. C. E. Co., 35 Minn. 223; State v. Minnesota
T. M. Co., 40 Minn. 213. In California, under a statute giving to the supreme court of the state appellate jurisdiction in all cases at law in which the demand amounts to 8300, it is held that an appeal will lie to the supreme court from a judgment in a proceeding in quo warranto to determine the title to a public office, in which the court below is empowered to impose as
§ 616$. When under the laws of a state a proceeding in the nature of quo warranto is regarded as an ordinary civil action for the enforcement of a civil right, such a proceeding, when brought by the state in one of its own courts to test the right of a corporation to the exercise of corporate franchises within the state, is removable to the circuit court of the "United States under the act of congress of March 3, 1875, when it is shown that the proper jurisdictional conditions exist to warrant such removal.1
§ 617. A striking analogy exists between the remedy by quo-warranto information, and the extraordinary remedies of injunction in equity and mandamus at law, in that neither of these extraordinary remedies is grantable where the party aggrieved may obtain full and adequate relief in the usual course of proceedings at law, or by the ordinary forms of civil action.2 So an information will not lie against an officer of state militia, when a special tribunal is provided by the militia law of the state which is vested with exclusive jurisdiction of such matters.3 Nor is the rule as here stated limited to cases where the relief may be obtained in the ordinary forms of common-law actions, but it applies also to cases where the grievance may be redressed by bill in equity, and the existence of an adequate remedy in equity would seem to be a sufficient objection to entertaining proceedings by information.*
§ 6170. Some conflict of authority has existed as to the extent to which statutory remedies for contesting elections to public office impair or supersede the jurisdiction of thd courts by proceedings in quo warranto to determine the title to such offices, in cases of dispute between rival claimants.
a part of the judgment for usurping the office a fine of $5,000.
1 Ames v. Kansas, 111 U. S. 449.
2 People v. Hillsdale & Chatham Turnpike Co., 2 Johns. Rep. 190; State v. Wadkins, 1 Rich. 42; State v. Itarlow, 15 Ohio St. 114; State v. Shields, 56 Ind. 521; State v. Wil-
son, 30 Kan. 661. And see State v. Taylor, 15 Ohio St. 137.
3 State v. "Wadkins, 1 Rich. 43.
4 People v. Whitcomb, 55 Ill. 172; Dart v. Houston, 22 Ga. 506. And see State v, Ridgley, 21 HL 65; Stultz v. State, 65 Ind. 492.
In some of the states it has been held that when a specific remedy is provided by statute for contesting elections before a tribunal designated for that purpose, and a mode of procedure therein is prescribed by law, resort must be had to such statutory remedy, and that proceedings by information in the nature of a quo warranto will not be entertained.1 The better-considered doctrine, however, undoubtedly is, that the existence of the -statutory remedy does not oust the jurisdiction of the courts by quo warranto, or prevent the people from resorting to this remedy to determine questions of usurpation of pablic offices. A proceeding in quo warranto is not an election contest between rival claimants of an office, but is rather a proceeding by the people in their sovereign capacity, the right to maintain which is not taken away or impaired by a statute granting to electors the right in their individual capacity to contest an, election to a public office. An information will, therefore, lie in behalf of the people in such cases, notwithstanding the existence of a statutory remedy in behalf of citizens or electors desiring to contest an election to a public office.2
§ 618. Since the remedy by quo warranto, or information in the nature thereof, is employed only to test the actual right to an office or franchise, it follows that it can afford no relief for official misconduct and can not be used to test the legality of the official action of public or corporate officers.3 Thus, in the case of breaches of trust alleged to have been committed by trustees of an incorporated association, relief should properly be sought in equity and not by proceedings in quo warranto.4 So when a public officer threatens to exercise powers not conferred upon him by law, or to ex-
1 State v. Marlow, 15 Ohio St. 114. See, also. State v. Taylor, 15 Ohio St. 137; Commonwealth v. Hens-zey, 81} Pa. St. 101; People v. Every, 88 Mich. 405; Parks v. State, 100 Ala. 634; State v. Gates, 35 Minn. 385.
2 Snowball v. People, 147 Ill. 260;
People v. Holden, 28 Gal. 123; Tai-box v. Sughrue, 36 Kan. £23; Kane v. People, 4 Neb. 509.
3 People v. Whitcomb. 55 Ill. 172; Dait v. Houston, 23 Ga. 500; State v. Wilson, 30 Kan. 661.
« Dart v. Houston, 22 Ga. 506.
ercise the functions of his office beyond its territorial limits, the proper remedy would seem to be by injunction, rather than by a quo-warranto information. Thus, an information will not lie to prevent the legally constituted authorities of a city from levying and collecting taxes beyond the city limits, under an act of legislature extending the limits, and the constitutionality of such an act can not be determined upon a quo-warranto information.1 'Nor will an information lie against the officers of a municipal corporation to determine whether certain territory has been properly annexed to the municipality.2 And misconduct upon the part of a public officer is not of itself ground for forfeiting his
1 People v. Whitcomb, 55 III 172. Mr. Justice Walker, for the court, says: "The question sought to be raised by the information in this case is whether the city officers can extend the city government beyond the original limits of the town, and can levy taxes and enforce ordinances in the portion of territory annexed by the act of February 23, 1869, and which is used exclusively for agricultural purposes, and whether that act is not unconstitutional and void. The demurrer to the answer of respondents brought the whole record, as well the information as the answer, before the court to determine its sufficiency. The first question presented by the demurrer is whether the remedy, if any exists, has not been misconceived; whether the question of power to extend the city government over this territory thus annexed can be raised by quo warranto. This writ is generally employed to try the right a person claims to an office, and not to test the legality of his acts. If an officer threatens to ex-
ercise power not conferred upon the office, or to exercise the powers of his office in a territory or jurisdiction within which he is not authorized to act, persons feeling themselves aggrieved may usually restrain the act by injunction. ... In this case there seems to be no question that defendants in error are legally and properly officers of the city, and there can be as little doubt that they may perform all the functions of their offices within the city limits, whatever they may be. If they attempt to pass and enforce ordinances beyond the bounds of the city, or to levy and collect taxes beyond the city limits, such acts would be unauthorized, and might, no doubt, be restrained on a bill properly framed for that purpose. But whether a law which purports to attach this territory to the original corporate limits is or not constitutional, can not be determined in such a proceeding as this." • 2 Stultz v. State, 65 Ind. 492.
office upon proceedings in quo warranto, since the ground of forfeiture should be first judicially established before the information may be entertained.1 If, however, the acts of misconduct charged against the officer are declared by statute to work a forfeiture of his office, an information will lie, and judgment of ouster may be given against the officer upon the ground of such misconduct or breach of official duty.2
§ 619. "When the right to an office or franchise is the sole point in controversy, the specific legal remedy afforded by proceedings in quo warranto is held to oust all equitable jurisdiction of the case.3 Thus, the legality of the election of trustees of an incorporated association, and their consequent right to exercise the functions pertaining to their office, and to conduct the affairs of the corporation, will not be determined by bill in chancery, such a case being regarded as appropriately falling within the jurisdiction of the common-law courts by proceedings in quo warranto.* And since this remedy is applicable the moment an office or franchise is usurped, an injunction will not lie to prevent the usurpation, even though the respondent has not yet entered upon the office or assumed to exercise its functions. In such case the party aggrieved should wait until an actual usurpation has occurred and then seek his remedy in quo warranto.5
§ 620. To warrant a court in entertaining an information in the nature of a quo warranto, a case must be presented in which the public, in theory at least, have some interest, and it is not an appropriate remedy against persons alleged to have assumed a trust of a merely private nature, unconnected with the public interests. Thus, trustees appointed under an act of legislature to close up the affairs of
1 State v. Wilson, 30 Kan. 661.
2 State v. Foster, 32 Kan. 14 'Updegraff v. Crans, 47 Pa. St.
103; Hullmanu Honcomp, 5 Ohio St. 237.
4Hullman v. Honcomp, 5 Ohio St. 237. See, also, Osgood v. Jones, 60 N. H. 282.
STJpdegraff v. Crans, 47 Pa. St. 103.
a state bank are not regarded as officers whose title may be determined by this form of remedy, since the public, as such, have no interest in the matter, and more appropriate relief may be sought by bill in equity in behalf of the parties aggrieved. Such trusteeship has none of the elements of an office, having neither a prescribed tenure and functions, nor an official oath. NOT is it a franchise in any proper sense of that term, since the appointment confers, no privilege or immunity of a public nature, nor does it convey any element of prerogative from the sovereign to the subject. Hence, an information will not lie in cases of this nature, but the parties aggrieved will be left to pursue their remedy in equity for a maladministration of the trust.1 And a license issued
i People v. Eidgley, 21 J1L 66. " The act under which the defendants were appointed," says Mr. Justice Breese, " does not declare the trust to be an office, nor in the manner of their appointment was it considered an office. It has none of the indications of an office, no tenure is prescribed, no fees or emoluments allowed, and no salary, nor is any oath required to be taken. As the relators define it in their information, it is a mere ' trusteeship,' the duties of it being to take charge of the assets and wind up the affairs of the state bank, pay out its specie on hand pro rata, and issue certificates of indebtedness to bill-holders and other creditors; in one word, to administer on the effects of a defunct corporation. These were duties of a special character, applicable alone to a particular corporation, and nothing more. It has none of the constituents of an office, none whatever. The defendants have the legal title to all the property assigned, to hold to them and the survivors
of them, so that by judgment of ouster they could not be divested of this title. This can only be done by bill in chancery. Is it a franchise? A franchise is said to be a right reserved to the people by the constitution, as the elective franchise. Again, it is said to be a privilege conferred by grant from government, and vested in one or more individuals as a public office. Corporations or bodies politic are the most usual franchises known to our laws. In England they are very numerous, and are defined to be royal privileges in the hands of a subject. An information will lie in many cases growing out of these grants, especially where corporations are concerned, as by the statute of 9 Anne, chapter 20, and in which the public have an interest. In 1 Strange K. (The King v. Sir William Louther), it was held that an information of this kind did not lie in the case of private rights, where no franchise of the crown has been invaded. If this is so, if in England a privilege existing in
pursuant to statute, authorizing the holder to practice medicine and surgery, is not within any legal definition of a franchise, and an information will not lie to annul or vacate such license.1 The information, however, will lie against one who claims an exclusive franchise or privilege of a valuable nature, affecting the public, such for example as the privilege of operating a ferry over a river, although the mere fact of taking money from passengers is not of itself conclusive evidence of setting up or asserting an exclusive right.3
§ 621. The information in the nature of a quo warranto being in effect a civil remedy, although criminal in form, it is held that a statute of limitations barring proceedings upon the prosecution of indictments or informations under any penal law is not applicable to this form of remedy, and it is not barred by such a statute.3 And in the absence of any statutory period of limitation, it is held in this country that the attorney-general may file the information in behalf of the people at any time, and that lapse of time constitutes no bar to the proceeding, in conformity with the maxim nullum tern/pus occurrit regi.* So when the purpose of the information is to determine a matter of public right, as distinguished from a question of private interest, as when it is brought to test the legal existence of a municipal corporation and the
a subject, which the king alone could grant, constitutes it a franchise, in this country, under our institutions, a privilege or immunity of a public nature, -which could not be exercised without a legislative grant, would also be a franchise. There must be some parting of prerogative belonging to a king, or to the people, under our system, that can constitute a franchise. Upon these defendants nothing of that kind was conferred." 1 State v. Green, 112 Ind. 462.
2 Eex v. Eeynell, Stra. 1161.
3 Commonwealth v. Birchett, 2 Va. Gas. 51.
4 State v. Pawtuxet Turnpike Co., 8 E. I. 521. But see, contra, People v. Boyd, 133 Ill. 60. As to the statute of limitations controlling proceedings in quo warranto against a corporation in Ohio, to oust it from the exercise of franchises not conferred by law, or to correct a misuser of a corporate franchise, see State v. Standard Oil Co., 49 Ohio St. 137; State v. Eailroad Co., 50 Ohio St. 239.
rio-ht of its officers to exercise certain corporate powers and functions, the statute of limitations' does not apply.1 But the state may be barred by its -own laches and acquiescence from maintaining the proceeding, as in a case 'where it is sought to oust a corporation frdm the franchise or privilege of occupying certain public roads, in the use of which by the corporation tHe state'has long acquiesced.2 And when a corporation, such as a railway or turnpike company, has-been permitted to exercise its corporate franchises for many years, without objection or question upon the part of the state, such acquiescence has been held sufficient ground for refusing to entertain an information in quo warranto to-questibn the "right to exercis'e such franchises.3
§ 622. When the remedy by information in the riature of a quo warranto has been regulated by legislative enactments, these ena'ctments'are regarded by the courts as in the nature of remedial statutes, to which a strict construction is not to be applied. In such cases the usual rules' of construction of remedial statutes are held applicable, and the courts will so construe them as to promote and render effective thte remedy sought.4 And under a statute extending the rem-fedy to cases where any person shall hold or claim the right 'to exercise any privilege, exemption or license which hds 'been improperly granted, the validity of a municipal licence for the sale of intoxicating liquors may be properly tested by an information in quo warranto.5
iCatlett v. People, 151 Ill. 16. It would seem, however, to be otherwise when the information is brought to enforce a private as distinguished from a public right. ' People v. Boyd, 133 Ill. 60.
2 Commonwealth v. Bala & B. M. T. Co., 153 Pa. St. 47.
8State v. Bailey, 19 Ind. 452; State v. Gordon, 87 Ind. 171.
4 Common wealth v. Dillon, 61 Pa. 'St. 488.
5Swarth v. People, 109 III 621. See, also, State v. City of Topeka> 30 Kan. 653; S. C., 31 San. 452.
OF QUO WARRANTO AGAINST PUBLIC OFFICERS.
§ 623. Information generally used in England against municipal corporations; in this country against public officers. 624 Power derived from the'people in the United States; when people estopped from questioning title.
625. Office defined; .jurisdiction extended to all public officers; ex-
tended to creation of new office.
626. Nature of offices for which the information will lie; three tests
627. Actual user of office must be shown.
628. Judicial discretion; information refused for petty office.
629. Burden of showing title rests on respondent. 629a. How far title of relator considered.
630. Degree of interest required of relator.
631. Effect of acquiescence and laches.
632. Distinction between office and employment.
633. Effect of expiration of term, or resignation of office.
634. The information lies against governor of a state; presumptions
635. Judicial offices.
635a. President of state senate.
636. Jurisdiction not exercised to restrain officer from acting.
637. Military offices in the states.
638. Return of canvassers not conclusive as to election; effect of
639. The doctrine recognized in New York; the rule in Michigan. 639a. Certificate of election not conclusive.
6396. Effect of removal from office.
640. In Alabama information lies only for ineligibility to office.
641. Remedy in quo warranto a bar to an injunction.
642. Rule where rights of claimant are being already adjudicated.
643. Misdemeanor in office; change of residence of officer.
644. Information will not lie when judgment of ouster can not be
645. The jurisdiction not exercised when mandamus is the appro-
646. Effect of acquiescence in irregular election.
646a. Control of legislature or city council over elections, when a bar to quo warranto.