*the state, or sovereignty, in the nature of a quo warranto, upon which a rule issues to the defendant to show by what warrant he exercises the function or franchise called in question.3 These proceedings are now very much controlled in England and in the American states by statute defining the form of process and the jurisdiction of the courts in regard to them.

2. In the absence of special provisions, the highest courts of ordinary civil jurisdiction are accustomed to exercise the prerogative right of sovereignty, to issue this process, as well as other prerogative writs, such as a mandamus, certiorari, procedendo, prohibition, &c. In some of the states the courts refuse to exercise any such prerogative rights. And in others this power is, by statute, conferred upon the Court of Chancery, but in other forms.5

4

3. The English courts do not seem to have allowed the exercise of this proceeding in the case of mere private corporations, although there are numerous cases in the English books of its exercise in regard to municipal corporations, and others of an important public character.

3 State v. Brown, 33 Miss. 500.

State v. Ashley, 1 Pike (Ark.), 279; Attorney-General v. Leaf, 9 Humph. 753. 278; State v. McBride, 4 id. 303; State v. 330, where in the latter state it was held the writ should issue.

State v. Turk, Mart. & Yerg. 287; See also State v. Merry, 3 Missouri, St. Louis P. M. & Life Ins. Co., 8 id.

In Pennsylvania the Supreme Court has authority to try by mandamus or quo warranto whether or not a contract entered into between two different corporations is in excess of the lawful powers of either, and if either corporation is exercising rights or franchises to which it is not entitled, then to oust it therefrom; and the proceeding may be either at common law or in equity, provided the right of trial by jury is not interfered with. Commonwealth v. Delaware & Hudson Canal Co., 43 Penn. St. 295.

State v. Turk, Mart. & Yerg. 287; State v. Merchants' Ins. Co., 8 Humph. 253; Attorney-General v. Leaf, 9 id. 753.

Rex v. Williams, 1 Bur. 402; Rex v. Breton, 4 Burrow, 2260; Rex v. Highmore, 5 Barn. & Ald. 771; Rex v. M'Kay, 4 B. & C. 351; Smyth ex parte, 11 W. R. 754; s. c. 8 L. T. N. S. 458; Reg. v. Hampton, 13 L. T. N. S. 431. The same rule obtains in regard to this proceeding in this respect in England as in regard to mandamus.

Ante, § 155; Rex v. Sir Wm. Lowther, 1 Strange, 637; Rex v. Mousley, 8 Ad. & Ellis, N. S. 957, decided in 1846, where it is held that the mastership of a hospital or a grammar school was not of so public a character as to justify the exercise of this remedy; nor the office of a churchwarden, Barlow in re, 30 L. J. Q. B. 271; s. c. 5 L. T. N. S. 289.

*4. But there is no question that in the American states this form of proceeding is extended to aggregate corporations in general, and more especially to the case of banks and railways, which partake in some sense of a public character. The general principles which we have found applicable to the subject of mandamus, will, for the most part, apply to this proceeding.8

5. The court cannot establish corporate officers, who would have been elected had all the legal votes offered been received by the inspectors.9 The only remedy is to set aside the election. And the court will not proceed by mandamus to fill an office until the title is first tried.10

* Commonwealth v. Arrison, 15 Serg. & Rawle, 128; The People v. Thompson, 21 Wend. 235; s. c. 23 id. 537; Commonwealth v. Union Ins. Co., 5 Mass. 231; People v. River Raisin & Lake Erie Railw., 12 Mich. 381. See ante, § 153; State v. B. Concord & M. Railw., 25 Vt. 433'; Grand Gulf Railw. and Bank v. State, 10 Sm. & M. 427 ; State v. A. P. Hunton and others, 28 Vt. 594. But if an election of managers of a corporation be not disputed during their term of office by quo warranto, and they are permitted to act throughout their term as managers de facto, the legality of the next election cannot be questioned for any vice or irregularity in the first. A writ of quo warranto brought during the term of an office may be tried after the term has expired, but title to a term of office already expired, at the issue of the writ, cannot be determined in this manner by proceedings instituted against those afterwards succeeding to the office. Commonwealth v. Smith, 45 Penn. St. 59. This writ will be granted, although the defendant has resigned the office, if the object of the relator is not only to cause the defendant to vacate the office, but to establish another candidate in the office, as the relator is entitled in such case to have judgment of ouster, or a disclaimer upon the record. Queen v. Bloyzard, Law Rep. 2 Q. B. 55. In Neall v. Hill, 16 Cal. 145, it is said that the removal of a mere private or ministerial officer of a corporation is a right that belongs to the corporation alone, and the courts have no jurisdiction to remove such officer, or, it seems, even to enjoin him from acting.

8 Ante, chap. XXIII. And see State v. Commercial Bank of Manchester, 33 Miss. 474, where the acts and omissions that will allow a forfeiture of the charter by quo warranto, are discussed.

9 In the matter of the Long Island Railw., 19 Wendell, 37; 2 Am. Railw. C. 453. In quo warranto against a usurper by a claimant, it is competent for the court to oust the usurper without determining the right of the claimant. Gano v. State, 10 Ohio N. S. 237. See Doane v. Scannell, 7 Cal. 393; People v. Same, id. 432. One who is relator in a quo warranto, on the ground of the use of blank voting papers, but who has previously used blank voting papers on the same and former elections, and has been formerly elected in that mode, is precluded from maintaining the writ upon that ground.. Sed quære. Queen v. Lofthome, L. R. 1 Q. B. 433.

10 Rex v. Truro, 3 B. & Ald. 590.

6. And where a railway company were authorized to make a line, with branches, and they completed a portion of it, but abandoned other parts of it, this is not a public mischief, which will entitle the attorney-general to file an information, in the nature of a quo warranto against the company, to prevent them from opening the part completed, until the whole is perfect."1

*

7. And an information in the nature of a quo warranto, under the Massachusetts statute, will not lie against a railway company, in behalf of a stockholder, merely because they issued stock below the par value,12 and began to construct their road, before the requisite amount of stock was subscribed, it not appearing that the petitioner's private right was thereby put at hazard.13

8. The form of the judgment in proceedings of this character will depend upon the facts proved, and the object to be attained. Where the defect in defendant's right is merely formal, like the omission to take the requisite oath, the judgment is for a suspen

"Attorney-General v. Birmingham Junction Railw., 3 Mac. & Gor. 453; s. c. 8 Eng. L. & Eq. 243.

12 See Howe v. Derrel, 43 Barb. 504; Commonwealth v. Farmers' Bank, 2 Grant's Cas. 392.

In this case the Another section of two sections, one

13 Hastings v. Amherst & Belchertown Railw., 9 Cush. 596. charter provided that the road extend “ through Amherst." the charter provided that the road might be divided into extending "to the village of Amherst," and the other from "Amherst to Montague." It was held, that taking land for the road, upon a route not terminating "in either village of Amherst,” was not the exercise of a franchise, not granted by the charter.

Any material departure from the points designated in the charter for the location of a railway, is a violation of the charter, for which the franchise may be seized upon quo warranto, unless the legislature has waived this right of the state by acts recognizing the legality of such violation of the charter. Mississippi, &c. Railw. v. Cross, 20 Ark. 443.

Where an act incorporating a railway provided that no subscription should be received and allowed, unless there should be paid to the commissioners at the time of subscribing five dollars per share, and this provision was not complied with, but the corporation organized itself, elected directors, &c., and began the construction of its road, by making contracts to grade it, some of the contractors not being aware of this failure to make the stipulated payment on the shares at subscription, and one of the stockholders, who was aware of that failure when he became a stockholder, and who had voted at the election of directors, and otherwise aided in setting up the corporation, applied to the court for leave to file an information in the nature of a quo warranto against the directors, to compel them to show by what authority they exercised their powers: it was held that this application should be rejected. Cole v. Dyer, 29 Georgia, 434.

sion of the exercise of the function until qualified by compliance with the requisite formality.14 But if there be shown, or confessed, a total defect of title in defendant, there is a judgment of ouster or forfeiture." And where it is intended to dissolve the corporation, judgment to that effect should be given in form.15

9. The relator is liable to costs if he fail, and is entitled to recover costs if he prevail ordinarily. But where the office is one where the party is compellable to serve, and is accepted and held in good faith, it is not common to allow costs against the incumbent upon judgment of ouster.16

10. In some of the states a process or proceeding under the name of "Quo Warranto" has been applied to test the question of corporate existence and power, on the ground of forfeiture of corporate rights by means of the omission to perform acts required by the charter, or of an excess of power having been resorted to, in either case in violation of granted powers and duties.17

11. And where the charter of a plank road company provides for the security of travel and for the enforcement of the duty of the company by suitable penalties, and the legislature, after the road was built and in use, imposed an entire forfeiture of the whole franchise of the corporation for failure to keep any portion of the road in repair, it was held to be such a modification of the charter as did not come within the proper exercise of the police power of the state, and therefore void as a violation of the contract in the grant of the charter. 18

12. But where a turnpike charter provides penalties upon the company and its agents for neglecting to keep the road in good and perfect repair, such provision cannot be held to deprive the state of its sovereign power to annul a grant when its purposes have failed, through either the positive acts or neglect of the grantees; and when the fact of such act or neglect is duly established, the special remedy provided by the charter will be regarded as merely cumulative. It is of the very essence of a *corporation, 14 Rex v. Clarke, 2 East, 75. But a judgment of ouster will conclude the party in any subsequent proceeding. Ib.

15 State v. Bradford Village, 32 Vt. 50; Rex v. Tyrrell, 11 Mod. 335.

16 Rex v. Wallis, 5 T. R. 375; State v. Bradford Village, supra.

17 Danville & W. L. Plank Road Co. v. The State, 16 Ind. 456. See also The People v. J. & M. Plank Road Co., 9 Mich. 285, where the extent of the remedy and the form of procedure is extensively discussed, but by a divided 18 The People v. J. & M. Plank Road Co., 9 Mich. 285.

court.

as a political existence or abstraction, that it should always be liable to dissolution by a surrender of its corporate franchises, and by a forfeiture of them, either by non-user or misuser.19

13. In a case where the statute directed the public prosecuting officers to take proceedings to determine whether the charter and franchises of a turnpike company had become forfeited by nonuser or abuser, where no form of remedy is prescribed, it was held that scire facias was the proper one to be adopted, and all that is required to be set forth in the writ is enough to inform the company of the causes of complaint and the extent of redress sought.19 This procedure is very much the same, in effect, as that by quo warranto, already discussed, except that it is in the form of a civil action.19

14. It is no excuse for a turnpike company not keeping its road in repair, that the state have chartered a railway along the same route, and thereby disabled the company from maintaining its road in the state of repair required by the charter. 19 Nor is it a bar to the proceedings that the company have applied all their tolls to the repair of the road.19

15. This remedy under the Massachusetts General Statutes,20 in order to redress an injury to private rights or interests from the exercise by a private corporation of a franchise or privilege not conferred by law, does not supersede the jurisdiction in equity in cases of private nuisance.21

19 Wash. & Balt. T. Road Co. v. The State, 19 Md. 239. The particular forms of the pleading, both on the part of the plaintiff and defendant, are here extensively discussed, as well as many questions in regard to the admissibility of evidence.

20 C. 145, § 16.

21 Fall River Iron Works v. Old Colony & Fall River Railw., 5 Allen, 221.

END OF VOL. I.