The Practice of
EXTRAORDINARY REMEDIES
HABEAS CORPUS AND THE OTHER COMMON LAW WRITS
Volume II
By
CHESTER JAMES ANTIEAU
Emeritus Professor of Constitutional Law Georgetown University
1987
OCEANA PUBLICATIONS, INC.
New York London Rome
Library of Congress Cataloging-in-Publication Data
Antieau, Chester James.
The practice of extraordinary remedies.
Includes index.
1. Extraordinary remediesUnited States. 2. Habeas corpusUnited States 3. Extraordinary remedies. 4. Habeas corpus. I. Title. KF9035.A94 1987 347.7T77 87-5668
347.30777
ISBN 0-379-20791-5 (set) ISBN 0-379-20839-3 (v. 2)
© Copyright 1987 by Chester J. Antieau
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, xerography, or any information storage and retrieval system, without permission in writing from the publisher.
Manufactured in the United States of America
TABLE OF CONTENTS
VOLUME II
Book Three
THE WRIT OF PROHIBITION
Part One
THE SUBSTANTIVE LAW
§ 3.00 History of the writ................................... 475
§ 3.01 Nature of the writ ................................... 476
§ 3.02 Availability for "jurisdictional" defects ................. 477
§ 3.03 Availability when an inferior court "exceeds
jurisdiction" ........................................ 478
§ 3.04 General unavailability for mere errors in the
exercise of admitted jurisdiction ....................... 481
§ 3.05 Restriction to "judicial" and "quasi-judicial"
functions and general unavailability to restrain acts and functions characterized as "ministerial," "administrative," "executive" or "legislative" ............ 482
§ 3.06 Availability of the writ in connection with
criminal prosecutions generally ..................... 484
§ 3.07 Availability of the writ where inferior court
lacks jurisdiction over offense ......................... 485
§ 3.08 Availability where the statute creating the crime has been repealed or the statute of limitations has run............................................ 485
§ 3.09 Availability where the statute or ordinance upon
which the prosecution is based is invalid ................ 485
§ 3.10 Availability of the writ where a grand jury lacks jurisdiction, as well as where the indictment is constitutionally defective ............................. 486
§ 3.11 Availability where an information is defective ........... 487
§ 3.12 Availability for defects at preliminary hearings .......... 487
§ 3.13 Where a person would be subjected to double
jeopardy or to vexatious prosecutions .................. 488
§ 3.14 Availability of the writ when the prosecution
has been unreasonably delayed ........................ 488
§ 3.15 Availability of the writ where right to jury trial
has been denied..................................... 488
§ 3.16 Availability of the writ where judge disqualified.......... 489
§ 3.17 Availability of the writ where accused
incompetent to stand trial ............................ 489
§ 3.18 Availability of the writ where accused has
immunity from prosecution ........................... 489
§ 3.19 Availability of the writ where an accused is
denied his privilege against self-incrimination............ 490
§ 3.20 Availability of the writ where an accused is
denied his right to counsel ............................ 490
§ 3.21 Availability of the writ where accused's Fourth
Amendment rights are violated ........................ 490
§ 3.22 Availability of the writ where accused denied a
public trial ......................................... 490
§ 3.23 Availability of the writ to test the validity of
orders granting or denying discovery ................... 491
§ 3.24 Waiver ............................................ 491
§ 3.25 Availability of the writ for post-conviction
matters ............................................ 492
§ 3.26 Availability of the writ in connection with miscellaneous matters relating to criminal prosecutions........................................ 492
§ 3.27 Availability of the writ in juvenile court
proceedings........................................ 493
§ 3.28 Availability of the writ to halt unauthorized
contempt proceedings................................ 493
§ 3.29 Availability of the writ to stop administrative
proceedings ........................................ 494
§ 3.30 Availability of the writ in connection with civil
litigation generally ................................ 495
§ 3.31 Availability of the writ in connection with
protection of constitutional and civil rights.............. 496
§ 3.32 .Availability of the writ in connection with
elections ........................................... 498
§ 3.33 Pre-conditions to grant of prohibition absence
of another adequate remedy .......................... 499
§ 3.34 Pre-conditions to grant of prohibition need to
have objected to lower court .......................... 500
§ 3.35 Pre-conditions to grant of prohibition absence
of laches ........................................... 500
§ 3.36 Pre-conditions to grant of prohibition absence
of prematurity and mootness.......................... 501
§ 3.37 Pre-conditions to grant of prohibition good faith and clean hands; writ denied when would be useless or when contra to public policy........................ 501
§ 3.38 Pre-conditions to grant of
prohibition extraordinary hardship.................. 502
Notes to Part One........................................... 503
Part Two
THE PROCEDURAL LAW
§ 3.39 Pleading and practice generally........................ 535
§ 3.40 Courts authorized to issue the writ..................... 535
§ 3.41 Standing of plaintiffs to seek writ of prohibition ......... 536
§ 3.42 Defendants......................................... 538
§ 3.43 Initial pleading by the applicant for the writ............. 540
§ 3.44 The alternative writ and rule to show cause ............. 541
§ 3.45 The return ......................................... 542
§ 3.46 Demurrer, motion to quash and answer ................ 542
§ 3.47 Petitioner's response to the return ..................... 543
§ 3.48 The hearing ........................................ 543
§ 3.49 The absolute or peremptory writ....................... 544
§ 3.50 Appeals............................................ 545
Notes to Part Two .......................................... 547
Part Three
PROHIBITION OUTSIDE THE UNITED STATES
§ 3.51 Nature of the writ ................................... 559
§ 3.52 Restraint of judicial action............................ 560
§ 3.53 Absence or excess of jurisdiction ...................... 561
§ 3.54 Natural justice ...................................... 563
§ 3.55 Pre-requisites to the writ failure to object to defect in jurisdiction in court below;
acquiescence........................................ 564
§ 3.56 Pre-requisites to the writ freedom from
unreasonable delay; mootness ......................... 565
§ 3.57 Good faith; absence of prematurity .................... 566
§ 3.58 Absence of adequate alternative remedy ................ 567
§ 3.59 Procedural matters standing of applicants
for the writ ......................................... 568
§ 3.60 Procedural matters permissible and
necessary defendants................................. 569
§ 3.61 Procedural matters application for the writ ........... 570
§ 3.62 Relief.............................................. 571
§ 3.63 Appeals............................................ 572
Notes to Part Three ......................................... 573
Book Four THE WRIT OF QUO WARRANTO
Part One
THE SUBSTANTIVE LAW
§ 4.00 History of quo warranto............................. 591
§ 4.01 Nature of quo warranto .............................. 592
§ 4.02 Purpose generally................................. 592
§ 4.03 Determining title of persons claiming public
office.............................................. 593
§ 4.04 Who are officers?.................................... 594
§ 4.05 Against governmental entities and persons
claiming to be acting as such .......................... 595
§ 4.06 Against persons and associations purporting
to act as corporations without lawful authority:
against foreign corporations .......................... 596
§ 4.07 Against private corpdrations.......................... 596
§ 4.08 Quo warranto and officers of private
corporations........................................ 597
§ 4.09 Against persons usurping franchises and
privileges........................................... 597
§ 4.10 Pre-requisites absence of an adequate
alternative remedy................................... 598
§ 4.11 Pre-requisites freedom from unreasonable
delay .............................................. 598
§ 4.12 Pre-requisites absence of prematurity and
mootness........................................... 599
§ 4.13 Pre-requisites equitable conduct and public
interest ............................................ 600
Notes to Part One........................................... 603
Part Two
THE PROCEDURAL LAW
§ 4.14 Courts and venue ................................... 619
§ 4.15 Standing public officials ........................... 620
§ 4.16 Standing public officials on relation of private
persons ............................................ 621
§ 4.17 Standing private persons bringing in own
name the common law............................... 622
§ 4.18 Standing private persons bringing under
broadly worded statutory authorizations................ 622
§ 4.19 Standing private persons suing in own
name under statutes permitting with leave of court ....... 625
§ 4.20 Standing private persons bringing in own
name under statutes authorizing such action by claimants
of office involved.................................... 626
§ 4.21 Standing private persons bringing in own
name under statute authorizing same after attorney general has refused to bring action............................ 627
§ 4.22 Standing private person bringing with leave of
attorney general..................................... 629
§ 4.23 Standing private persons bringing under statutes providing such authority where local government offices are involved.................................. 629
§ 4.24 Pleading and practice-generally........................ 630
§ 4.25 Initial pleading of the applicant application
for leave to file...................................... 630
§ 4.26 Initial pleading of the applicant the complainant,
petition or information............................... 631
§ 4.27 Initial pleading of the defendant ....................... 632
§ 4.28 Additional permissible pleadings ...................... 634
§ 4.29 The hearing ........................................ 634
§ 4.30 Relief.............................................. 635
§ 4.31 Effect.............................................. 636
§ 4.32 Appellate review .................................... 637
Notes to Part Two .......................................... 639
Part Three
QUO WARRANTO OUTSIDE THE UNITED STATES
§ 4.33 History and nature of quo warranto.................... 661
§ 4.34 Purpose............................................ 662
§ 4.35 Who are "officers" for purpose of quo warranto ......... 664
§ 4.36 To oust persons usurping franchises and
privileges........................................... 665
§ 4.37 Discretionary powef of the courts...................... 665
§ 4.38 Standing of applicants or relators...................... 666
§ 4.39 Pleadings and practice ............................... 667
Notes to Part Three ......................................... 671
Book Five THE WRIT OF CERTIORARI
Part One
THE SUBSTANTIVE LAW
§ 5.00 History and nature of the writ......................... 681
§ 5.01 Type of actions reviewable in certiorari ................. 683
§ 5.02 Matters reviewed by certiorari generally.............. 686
§ 5.03 Matters reviewed by certiorari lack of
jurisdiction ......................................... 686
§ 5.04 Matters reviewed by certiorari excess of
jurisdiction.........................................687
§ 5.05 Matters reviewed by certiorari errors at trial .......... 688
§ 5.06 Matters reviewed by certiorari illegalities ............. 689
§ 5.07 Matters reviewed in certiorari whether a
failure of justice would result.......................... 690
§ 5.08 Pre-conditions to issuance of certiorari absence
of another adequate remedy .......................... 691
§ 5.09 Pre-conditions to issuance of certiorari laches
and limitations; mootness............................ 692
§ 5.10 Pre-conditions to issuance of certiorari other ......... 693
Notes to Part One........................................... 695
Part Two
THE PROCEDURAL LAW
§ 5.11 Procedure generally ............................... 715
§ 5.12 Procedure standing of applicants for
certiorari........................................... 715
§ 5.13 Procedure initial pleading of the applicant............ 717
§ 5.14 Defendants and their pleadings ........................ 717
§ 5.15 Scope of inquiry at trial .............................. 719
§ 5.16 The hearing........................................ 720
§ 5.17 Relief.............................................. 721
§ 5.18 Appeals............................................ 722
Notes to Part Two .......................................... 725
Part Three
CERTIORARI OUTSIDE THE UNITED STATES
§ 5.19 The nature of certiorari .............................. 739
§ 5.20 The discretionary nature of certiorari and its
consequences ....................................... 740
§ 5.21 The nature of matters reviewed by certiorari............. 742
§ 5.22 Rights protectable by certiorari........................ 744
§ 5.23 Instances in which certiorari issues lack of
jurisdiction ......................................... 746
§ 5.24 Instances in which certiorari issues "excess,"
"want," and "loss" of jurisdiction ...................... 747
§ 5.25 Instances in which certiorari issues errors on
the face of the record ................................ 748
§ 5.26 Instances in which certiorari issues violations
of natural justice notice............................ 749
§ 5.27 Instances in which certiorari issues where
natural justice violated hearing ..................... 750
§ 5.28 Instances in which certiorari issues where
natural justice violated bias and interest.............. 751
§ 5.29, Instances in which certiorari issues denial of
"fundamental justice" or fairness ...................... 753
§ 5.30 Instances in which certiorari issues consideration
of extraneous factors ................................ 754
§ 5.31 Instances in which certiorari issues violation
of mandatory statutory provisions ..................... 754
§ 5.32 Instances in which certiorari issues fraud,
collusion and perjury ................................ 755
§ 5.33 Procedural matters standing of applicants ............ 755
§ 5.34 Procedural matters application for the writ
or order............................................ 756
§ 5.35 Defendants and their practice ......................... 757
§ 5.36 The hearing admissibility
of evidence in certiorari.............................. 757
§ 5.37 Hearing scope of review ........................... 758
§ 5.38 The hearing other matters.......................... 759
Notes to Part Three ......................................... 761
Appendixes THE MINOR EXTRAORDINARY WRITS
Appendix One
THE WRIT OF NE EXEAT
§ 1.00 History of the writ................................... 781
§ 1.01 Nature of the writ ................................... 782
§ 1.02 Courts authorized to issue the writ..................... 782
§ 1.03 Purposes for which the writ is employed: (A) protecting political and security interests of the government ........................................ 783
§ 1.04 Purposes for which the writ is employed: (B) restraining departure of debtors at suit of private creditors.......784
§ 1.05 The moving party ................................... 785
§ 1.06 Defendants......................................... 786
§ 1.07 Practice in ne exeat.................................. 787
§ 1.08 Constitutionality of the writ in its restraint upon
liberty of the citizen ................................. 788
§ 1.09 Default by defendant ................................ 789
Notes to Appendix One...................................... 791
Appendix Two
THE WRIT OF SCIRE FACIAS
§ 2.00 History of the writ................................... 801
§ 2.01 Nature of the writ ................................... 802
§ 2.02 Purpose of the writ: (A) brought by Crown or
government to forfeit grants made from it............... 803
§ 2.03 Purpose of the writ: (B) in aid of private ends ........... 803
§ 2.04 Courts authorized to issue the writ..................... 804
§ 2.05 The moving party ................................... 805
§ 2.06 Defendants ......................................... 807
§ 2.07 Practice............................................ 808
Notes to Appendix Two ..................................... 811
Appendix Three
THE WRIT OF PROCEDENDO
§ 3.00 History of the writ................................... 821
§ 3.01 Nature of the writ ................................... 821
§ 3.02 Courts authorized to issue the writ..................... 822
§ 3.03 Purpose of the writ: (A) ending delays by inferior
tribunals ........................................... 823
§ 3.04 Purpose of the writ: (B) return to trial court after
appeal denied....................................... 823
§ 3.05 Purpose of the writ: (C) relief to defendants charged
with crime.......................................... 825
§ 3.06 Pleading and practice ................................ 825
Notes to Appendix Three .................................... 827
INDEX ................................................... 833
Book Four
THE WRIT OF QUO WARRANTO
Book Four Contents
Part One THE SUBSTANTIVE LAW § 4.00 History of quo warranto § 4.01 Nature of quo warranto § 4.02 Purpose generally § 4.03 Determining title of persons claiming
public office
§ 4.04 Who are officers? § 4.05 Against governmental entities and
persons claiming to be acting as such § 4.06 Against persons and associations
purporting to act as corporations
without lawful authority: against
foreign corporations § 4.07 Against private corporations § 4.08 Quo warranto and officers of private
corporations § 4.09 Against persons usurping franchises
and privileges § 4.10 Pre-requisites absence of an
adequate alternative remedy § 4.11 Pre-requisites freedom from
unreasonable delay §4.12 Pre-requisites absence of
prematurity and mootness § 4.13 Pre-requisites equitable conduct
and public interest
Part Two THE PROCEDURAL LAW § 4.14 Courts and venue § 4.15 Standing public officials § 4.16 Standing public officials on relation
of private persons § 4.17 Standing - private persons bringing in
own name the common law § 4.18 Standing private persons bringing under broadly worded statutory authorizations § 4.19 Standing private persons suing in
own name under statutes permitting
with leave of court § 4.20 Standing private persons bringing
in own name under statutes
authorizing such action by claimants
of office involved § 4.21 Standing private persons bringing
in own name under statute authorizing
same after attorney general has refused
to bring action § 4.22 Standing private person bringing
with leave of attorney general § 4.23 Standing private persons bringing
under statutes providing such
authority where local government
offices are involved
§ 4.24 Pleading and practice-generally § 4.25 Initial pleading of the applicant
application for leave to file § 4.26 Initial pleading of the applicant the
complainant, petition or information § 4.27 Initial pleading of the defendant § 4.28 Additional permissible pleadings § 4.29 The hearing § 4.30 Relief § 4.31 Effect § 4.32 Appellate review
Part Three QUO WARRANTO OUTSIDE THE UNITED STATES
§ 4.33 History and nature of quo warranto
§ 4.34 Purpose
§ 4.35 Who are "officers" for purpose of quo
warranto § 4.36 To oust persons usurping franchises
and privileges
§ 4.37 Discretionary power of the courts § 4.38 Standing of applicants or relators § 4.39 Pleadings and practice
Part One
THE SUBSTANTIVE LAW
§4.00 HISTORY OF QUO WARRANTO
Quo warranto is one of the most ancient writs known to the common law.' The earliest case on record appears in the 9th year of Richard I, 1198.2 At its earliest it was used to try the validity of feudal franchises,3 and 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.4 When citizens "informed" Crown officials of violations of the royal franchises, the officers then filed an "information" a criminal proceeding to punish by fine and imprisonment those who were usurping or abusing royal franchises and liberties.5
The statute of 9 Anne c. 20 in 1710 authorized a proper officer of a court, with leave of the court, to exhibit an information in the nature of quo warranto, at the "relation" of any person desiring to prosecute the same to be called the relator. Early American statutes were modeled after the Statute of Anne and, indeed, the statute has often been ruled to be part of the common law we inherited from England.6
The information in the nature of quo warranto persists in many jurisdictions, and elsewhere it has been replaced by a new civil action authorized by modern statute or court rule.7 With some procedural changes, the civil actions customarily follow the earlier law as to both scope of the action and the relief available. In virtually all instances, precedents under the former practice, employing the information in the nature of quo warranto, remain authoritative under the substituted civil actions.8
§ 4.01 NATURE OF QUO WARRANTO
Quo warranto was originally a prerogative writ, a writ of right belonging to the Crown.1 Later this was replaced by a criminal proceeding on information which resulted in the imposition of fines and sentences of imprisonment.2
Although sometimes it has been described in the United States as a prerogative writ,3 and occasionally it has been referred to as a writ of right when sought by the state for a public purpose,4 the traditional information in the nature of quo warranto and its modern statutory versions are overwhelmingly characterized as civil actions,5 issued not as of right, but only in the sound discretion of the court.6
Sometimes quo warranto has been described as a "preventive" action.7 Thus, the Pennsylvania Supreme Court has said: "Quo warranto is addressed to preventing a continued exercise of authority unlawfully asserted, rather than to correct what has already been done...."8
Quo warranto can be described as "remedial", with the consequence that statutes authorizing the action are to be liberally construed.9
§ 4.02 PURPOSE GENERALLY
In modern American practice the principal purposes of the action in quo warranto are six-fold: (a) to determine the title of persons claiming possession of public offices and to oust them if they are found to be usurpers; (b) to oust public officers who have been guilty of acts or failures to act justifying forfeiture of office under local law; (c) to void actions of persons and associations claiming to be corporations without lawful authority; (d) to oust domestic corporations when they have been guilty of acts justifying forfeiture; (e) to test the title of individuals claiming offices in domestic corporations; and (f) to question the authority of both individuals and corporations exercising franchises and privileges without lawful authority.l
Recalling that historically the information in the nature of quo warranto was once a criminal proceeding, a secondary purpose the punishment of wrongdoers is evident at times both from the
language of the statutes,2 as well as from the frequent statutory provisions authorizing both fines and arrest.3
§ 4.03 DETERMINING TITLE OF PERSONS CLAIMING PUBLIC OFFICE
The most frequent use of quo warranto in America is in testing the right of claimants to public office and ousting usurpers.1 It is often the exclusive procedure for trying title to public office.2 In the case of elected public officials, quo warranto can, at times, determine the validity of the election,3 but in some states applicable statutes are construed to oust quo warranto where there is involved a question of validity of an election of a public officer.4
Quo warranto has issued to oust a public officer when the statute creating his office is unconstitutional,5 and it generally lies to oust one who is assuming to discharge the duties of an office of a public nature which has no legal existence.6
Quo warranto is available to test the title of a public officer only when he is in actual occupation and exercise of the office.7 If the office is vacant, quo warranto has been held not to be the proper proceeding.8 It has been refused when brought before the commencement of the term of office of the defendant or his assumption of office.9 If the term of office has expired, quo warranto is ordinarily refused.10
The claims of public officers to particular powers can be tested in quo warranto,11 although it is not available to question the validity of acts admittedly within their power.12
Quo warranto regularly is available to determine if a pubic officer has forfeited his right to the office by misconduct.13 Comparably, it issues when a public officer loses the required qualifications for the office.14
Statutes and charter provisions that governing bodies of local governments will be the "exclusive judge" of the qualifications of members do not generally prevent the use of quo warranto to try the title to office of such members.15
§ 4.04 WHO ARE OFFICERS?
Various definitions of the word "officers" have been proffered by the courts.' For the purpose of quo warranto it can be said generally that they are public servants (a) who have been invested with an important portion of the sovereign functions of government, (b) who have either been elected by the voters or appointed to a post requiring a high level of competence, (c) who often hold for a fixed term of office, or at least are free from summary dismissal, (d) who customarily take an oath of office, and (e) are often entitled to the fees or emoluments attached to an office.
The following have all been held to be public officers for the purpose of quo warranto actions:
Aldermen2
City judges3
City treasurers4
Constables5
Councilmen6
County board members7
County commissioners8
County health officers9
County surveyors10
County treasurers11
Deputy building inspectors12
Governors13
Harbor masters4
Justices of the peace15
Lieutenant governors16
Mayors17
Members of boards of education18
Members of municipal boards19
Members of state adult authorities21
Members of state legislatures22
Members of township board of supervisors23
Pilot of port authority24
Policemen25
Police chieP6
Precinct committeeman27
Secretary of city board of health28
Sheriff29
State engineer30
State senator31
Superintendent of public education32
Superintendent of public works33
Teachers34 and
Town marshals35
It is generally held that an officer of a political party does not become a public officer of the State, even though the party is regulated and controlled by statute, and quo warranto is denied to test title of such an officer.36 So, too, party nominees have generally been held not to be public officers,37 although in Florida and Oklahoma quo warranto has been used against the holders of nominations of political parties to try their titles thereto.38
§ 4.05 AGAINST GOVERNMENTAL ENTITIES AND PERSONS CLAIMING TO BE ACTING AS SUCH
Quo warranto is the proper remedy to test the validity of the organization of municipal corporations' and other local governmental entities.2 It issues to test the validity of city3 and county4 charters.
Quo warranto is available to test whether persons have the right to act as local governmental entities.5
The writ of quo warranto is proper to test the validity of the exercise of particular powers by local governmental entities.6 Illustratively, quo warranto is appropriate to test a municipality's exercise of jurisdiction over particular lands.7 It issues to determine/ the validity of attempted annexations by municipal corporations.8 The writ is used to test the validity of the enactment of ordinances.9 So, too, it is available to test the validity of attempted creation of offices by governments.10 It is granted to test the right of local governments to operate particular franchises.''
Quo warranto generally is the proper remedy when the State desires to oust a municipal corporation or other local governmental entity.12 However, courts demand strong proof to justify an ouster of such entities,13 and ouster has many times been denied upon a careful balancing of the competing social interests.14
Occasionally it has been held that quo warranto is a proper proceeding to determine whether a branch of the legislature has been organized according to the state constitution.15
At the common law in America, electors and taxpayers were unable to bring quo warranto to question the validity of municipal corporations or the exercise of their powers.16 Under some statutes, electors and taxpayers, either with the consent of attorneys general or county attorneys or with leave of the court, have been able to bring quo warranto to question the lawful existence of municipal corporations17 or the legality of their assumed powers.
§ 4.06 AGAINST PERSONS AND ASSOCIATIONS PURPORTING TO ACT AS CORPORATIONS WITHOUT LAWFUL AUTHORITY: AGAINST FOREIGN CORPORATIONS
In virtually all States quo warranto can be brought against private individuals and associations who are purporting to be corporations without lawful authority.l
Comparably, quo warranto is available to test the right of a foreign corporation to do intrastate business within the State, and to oust it if it is either initially unauthorized2 or later violates laws of the State justifying ouster.3
§ 4.07 AGAINST PRIVATE CORPORATIONS
In most states quo warranto is the proper proceeding to test the validity of the organization of private corporations.l
Generally, the validity of the exercise of particular powers by private corporations can be tested by quo warranto, which issues then to oust, not the corporation, but its assertion of the particular power.2 Although it has been said that quo warranto should not be available to correct simple misconduct of corporations,3 it has been used to compel such corporations to respect state laws.4
Corporations can be ousted from a state by quo warranto whenever its act or acts justify ouster under local law.5, Although it has been said at times that "courts should act with extreme caution" in forfeiting corporate charters,6 a single act has at times been held sufficient to justify quo warranto ouster of a private corporation.7
Quo warranto is customarily available to a state to forfeit the charter of a domestic corporation for nonuser of its corporate powers or franchises.8
At the common law the foregoing actions on behalf of the state against domestic corporations could only be brought by the attorney general acting for the state.9 Modern statutes often provide for private party litigation of quo warranto against private corporations.10
§ 4.08 QUO WARRANTO AND OFFICERS OF PRIVATE CORPORATIONS
Many states authorize the use of quo warranto against persons who usurp offices in private corporations.1 More generally, quo warranto is a proper proceeding in many states to try title to offices in domestic corporations.2
At the common law quo warranto was not an available procedure to try title to offices in private corporations,3 but modern statutes frequently authorize these proceedings, not only by attorneys general, but also by private individuals with interest.4 Under such statutes the attorney general ordinarily need not be a party to the action.5 It has been held that quo warranto is not available to question the right of a person to be an officer in a religious organization until the relator had exhausted all appeals available within the organization.6
Quo warranto has been available to test the legality of claims to power by officers in private corporations.7
In many jurisdictions quo warranto is available to oust corporate officers.8 At times such actions can be brought by stockholders in the corporation, without consent of the attorney general.9
Courts have generally been reluctant to allow the use of quo warranto to try the title to offices in unincorporated associations.10
§ 4.09 AGAINST PERSONS USURPING FRANCHISES AND PRIVILEGES
Statutes regularly authorize the use of quo warranto or its modern statutory equivalent against any person who usurps a franchise or a privilege, or who unlawfully exercises the same.l The Florida Court is fairly representative when it states: "We understand
a franchise to be some special privilege conferred by government on the individual, natural or artificial, which is not enjoyed by its citizens in general."2
While the orthodoxy is that something is not to be described as a "franchise" or "privilege" for the purpose of quo warranto law unless it is a grant from the state,3 it must be acknowledged that quo warranto has many times been accepted as a proper procedure to test the legality of various activities by private persons and corporations without legislative grant, in areas where there were at the time no legislative authorizations. Conceivably, the courts deemed it sufficient that the state could have been granting formal authorizations for the activities.4
Occasionally courts have granted quo warranto to protect not only franchises and privileges, but also "liberties." Being unwilling to label the superintendent of the yacht dock of the City of Miami an "officer," the Florida Court then concluded his post came within the concept of a liberty, so that quo warranto could be used to test his discharge and the right of his replacement to hold the position.5
§ 4.10 PRE-REQUISITES ABSENCE OF AN ADEQUATE ALTERNATIVE REMEDY
Quo warranto being a discretionary remedy, courts customarily have denied relief when the petitioner had available another remedy, at law or in equity, that was fully as convenient and effective.1 "It is one of the fundamentals of procedure in quo warranto," according to the Florida Supreme Court, "that the writ will not be issued where there is another ample and sufficient remedy provided by law for the relief sought."2
Remedies afforded by election statutes to test the election of public officers, and quo warranto, are generally deemed cumulative and the presence of the former does not ordinarily preclude quo warranto.3
§ 4.11 PRE-REQUISITES FREEDOM FROM UNREASONABLE DELAY
Private parties bringing quo warranto actions are barred by laches, that is, by their unreasonable and inexcusable delay, that has
worked to the prejudice of the defendants.' A party asserting laches must demonstrate prejudice resulting from the lapse of time.2
The doctrine of laches does not ordinarily apply when the government is bringing a quo warranto action;3 lapse of time by the relator not binding the state.4 However, laches is applied rather readily when the state is seeking to oust a local government entity and forfeit its charter.5 The Illinois Court has said that "if, as a result of inexcusable delay and public acquiescence, a judgment of ouster would result in great public inconvenience and detriment, the public interest requires that laches be applied in bar of the proceedings."6 Laches is also applied at times to bar quo warranto sought by the state to oust public officers.7 So, too, it is occasionally applied to bar the state from ousting public utilities.8
General statutes of limitation have not ordinarily been held applicable to quo warranto actions brought by the state for public purposes.9 However, there are special limitation statutes restricting the time in which private individuals can bring the action,10 and there are special limitation statutes applicable to the state, restricting the period of time in which they can bring actions of quo warranto both against public corporations11 and even private corporations.12
§ 4.12 PRE-REQUISITES ABSENCE OF PREMATURITY AND MOOTNESS
In the exercise of discretion courts have generally dismissed quo warranto actions when they considered them to be premature.' An action is premature when usurpation of office is only threatened by the defendant.2 An action against a person claiming office in a religious organization was dismissed because the petitioner had not yet exhausted remedies available within the organization.3
When the subject-matter of the action is moot, applications for quo warranto are generally dismissed.4 Accordingly, quo warranto petitions are customarily dismissed when brought after expiration of the term of office.5 In its discretion a court can, however, entertain the action after the end of the term of office.6 Unless the further prosecution of a proceeding in quo warranto is necessary to accomplish some public purpose beyond the ouster of the defendant, the proceedings are deemed to abate upon the voluntary surrender
by the defendant of the office challenged, after institution of the proceedings.7
§ 4.13 PRE-REQUISITES EQUITABLE CONDUCT AND PUBLIC INTEREST
In proceedings for quo warranto, courts can properly explore the motives of the petitioner,1 and it has been said that "acquiescence or inequitable conduct on the party of the relators...will justify a refusal" to grant quo warranto.2 The Georgia Supreme Court has stated:
"In all cases where an application is made for leave to file an information in the nature of quo warranto, the presiding judge may look to the relation which the parties applying sustain to the matter to be inquired into, and if the facts show that the applicants have been guilty of such conduct on their part as precludes them from making the inquiry, they will be estopped and their application denied."3
Conduct of the relator does not work an estoppel when quo warranto is sought by the state for a public purpose.4 In a proper case even the government can be estopped in bringing quo warranto by the conduct of its public officials.5
Quo warranto being discretionary with the court, it is everywhere agreed that courts are to consider the public interest in deciding whether to grant the petition.6 The Illinois Court states: "When the writ of quo warranto is sought for the purpose of enforcing private rights...a consideration of public interest or convenience will justify a refusal to grant leave to file such a complaint or a refusal to proceed to judgment of ouster after the complaint has been filed."7 Judges are to consider all the circumstances and possible consequences in deciding whether to grant quo warranto.8 This is equally true when the government is seeking quo warranto. The Massachusetts Court in such a case has said: "It is the duty of the court to consider all the conditions, including immediate and remote consequences and to determine with a broad vision of the public weal whether on the whole the common interests demand the issuance of this extraordinary remedy.9 This results in judicial refusal at times to oust local governmental entities, when it is apparent that important public interests have become affected and ouster would cause great confusion and inconvenience in municipal
affairs.10 The Florida Court has said that quo warranto will be denied if it will lead to confusion and disorder and the injury to the public will outweigh any rights of the complainant.11
Book Four NOTES TO PART ONE
§ 4.00
1 Holdsworth, History of English Law (1922) I, 88 et seq; Pollock & Maitland, History of English Law (2d ed. 1899) I, 572 et seq; United States ex rel. Wisconsin v. First Federal S. & L. Assn. (7th Cir 1957) 248 F 2d 804; People ex rel. Barton v. Londoner (1889) 13 Colo 303, 22 P 764, 765; State ex rel. Lloyd v. Elliott (1896) 13 Utah 200, 44 P 248; State ex rel. Young v. Kent (1895) X 96 Minn 255, 104 NW 948; State v. Ashley (1839) 1 Ark 279; Jenks, Prerogative Writs in English Law, 32 Yale L. J. 523, 527 (1923); Attorney General v. Sullivan (1895) 163 Mass 446,40 NE 843; Commonwealth ex rel. Parks v. Wherry (1930) 302 Pa 134, 152 A 846.
2 State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 344.
3 Jenks, supra note 1 527.
4 State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 344.
5 Jenks, supra note 1 527. State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 344.
6 State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 345. Not, however, in Delaware. Cleaver v. Roberts (1964) 57 Del 538, 203 A 2d 63.
7 Colorado Court Rule 106; Massachusetts Genl. Laws, c. 249 § 6 ff.; Mass. R.C.P., Rule 81B; Maine Rules of Civil Procedure, Rule 81(c); Kentucky Rules of Civil Procedure, Rule 81; North Carolina Stats. § 1-514; North Dakota Century Code § 32-1301; South Carolina Code § 15-63-10; South Dakota Codified Laws § 21-28-1; New York Code of Civil Procedure § 1983; Code of Virginia § 8.01-635; Wisconsin Stats. Ann. § 784.01; Utah Rules 65B(a) and (d); California Code of Civil Procedure, ch. 5, § 802 ff; New Jersey Stats. Ann. § 2A:66-5; Minnesota Rules of Civil Procedure, Rule 181; Connecticut Genl. Stats. Ann. § 42-491; Maryland has never employed the writ of quo warranto, and Delaware has neither constitutional nor statutory
provision, the writ being governed by common law principles. Cleaver v. Roberts (1964) 57 Del 538, 203 A 2d 63. 8 Connecticut Genl. Stats. Ann. § 42-491 ("according to the course of the common law, and may proceed therein and render judgment according to the course of the common law."); State ex rel. Weatherly v. Birmingham Waterworks (1913) 185 Ala 368, 64 So 23; Port Valdez Co. v. City of Valdez (Alaska 1974) 522 P 2d 1143; Rowan v. City of Shawneetown (1941) 378 Ill 289, 38 NE 2d 2; New Jersey Stats. Ann. § 2A; 66-6 ("by any person who, under the former practice, would have the requisite interest to exhibit an information in the nature of a quo warranto with the leave of court." Town of Burnsville v. City of Bloomington (1962) 264 Minn 149, 182 NW 2d 182; State ex rel. Burnquist v. Village of North Pole (1942) 213 Minn 297, 6 NW 2d 458; People ex rel. Mijares v. Kriss (1960) 144 Colo 551, 357 P 2d 352.
§ 4.01
1 3 Bl. Comm. *262. Jenks, Prerogative Writs in English Law, 32 Yale L. J. 523 (1923).
2 Commonwealth ex rel. Schermer v. Franek (1933) 311 Pa 341, 166 A 878, 879.
3 Baxter v. State ex rel. Metcalf (1942) 243 Ala 120, 9 So 2d 119, 120; State ex rel. Pooser v. Wester (1936) 126 Fla 49, 170 So 736, 737; Texas Constitution (1876) Art. I, § 12.
4 State ex rel. Landis v. S.H. Kress & Co. (1934) 115 Fla 189, 155 So 823.
5 Standard Oil Co. v. Missouri (1912) 224 US 270, 32 S Ct 406, 56 L Ed 760; United States ex rel. Wisconsin v. First Federal S. & L. Assn. (7th Cir. 1957) 248 F2d 804; People ex rel. Swindell v. City of Los Angeles (1928) 93 Cal App 532, 269 P 934; State ex
rel. Johnson v. City of Sarasota (1926) 92 Fla 563, 109 So 473; People v. Boyd (1890) 132 Ill 60, 23 NE 342; Mills v. State (1891) 2 Wash 566, 27 P 560; State ex rel. Miller v Richardson (1981) 229 Kan 234, 623 P 2d 1317; Fellows ex rel. Cummings v. Eastman (1927) 126 Me 147, 136 A 810; Mississippi Stats. Ann. § 11-39-17; Attorney General v. Sullivan (1895) 163 Mass 446, 40 NE 843. The information was originally a criminal action, but made civil in England by Stat. 47 & 48 Viet., c. 61 § 15.
6 State ex rel. Miller v. Lande Rural High School Dist. (1952) 173 Kan 1? 243 P22232; Winter Haven v. State ex rel. Landis (1936) 125 Fla 392, 170 So 100; State v. Cupples Power Co. (1920) 283 Mo 115, 223 SW 75; Attorney General v. Erie Rr. Co. (1884) 55
Mich 15, 20 NW 696; Baxter v. State ex rel. Metcalf (1942) 243 Ala 120, 9 So 2d 119; Rouse v. Wiley (Ala___) 440 So 2d 1023.
7 Citizens Utilities Co. v. Superior Court (1976) 56 Cal App 3d 399, 128 Cal Rptr 582.
8 State Dental Council & Exam. Bd. v. Pollock (1974) 457 Pa 264, 318 A 2d 910, 913; Spykerman v. Township of Chester (1980) 491 Pa 470, 421 a 2d 641, 648.
9 State ex rel. Evans v. Brotherhood of Friends (1952) 41 Wash 2d 133, 247 P 2d 787; State ex rel. Gilbert v. Prosecuting Attorney (1916) 92 Wash 484, 159 P 761; State ex rel. Pooser v. Wester (1936) 126 Fla 49, 170 So 736, 737; Scottsdale v. McDowell Mountain Irr. & D. Dist. (1971) 107 Ariz 117, 483 P 2d 532.
§ 4.02
1 E.g., Iowa Rules of Civil Procedure, Rule 299; Kansas Rev. Stats. § 60-1202; Nebraska Rev. Stats. § 24-21.121; South Carolina Code § 15-63-60; Code of Alabama 1975, § 6-6-591; California Code of Civ. Proc. ch. 5, § 803; Louisiana Code of Civil Proc., Art. 3901; Code of Virginia § 8.01-636. Washington Rev. Code Ann. § 7.56.010. West Virginia Code § 53-2-1. Wyoming Stats. Ann. § 1-31-101 Pa. Stats. Ann. title 12, § 2022. Quo warranto was described by Blackstone as "A writ of right for the king, against him who claims or usurps any office, franchise or liberty, to inquire by what authority he supports his claim in order to determine the right." 3 Bl. Comm. *262.
2 Connecticut Gen. Stats. Ann. § 52-491 (purpose is to "punish such person...."); Virginia Code § 8.01-643 ("if the defendant appears and is found guilty").
3 South Dakota Codified Laws § 21-28-19 (fines to $500.); South Carolina Code § 15-63-140 (misdemeanor when failure to turn over books etc.); North Dakota Century Code § 32-130-05 (arrest if received fees belonging to public); North Carolina Gen. Stats. § 1-527 (fines to $2,000.); Michigan Stats. Ann. § 27A.4515 (same).
§ 4.03
1 Alaska Stats. § 09.50.310; California Code of Civil Procedure, ch. 5, § 803; Connecticut Gen. Stats. Ann. § 42-491; Town of Cheshire v. McKenney (1980) 182 Conn 253, 438 A 2d 88, 90; Hampson v. State ex rel. Buckson (Del. 1967) 233 A 2d 155; Territory v. Morita (1935) 41 Hawaii 1; Iowa Rules of Civil Procedure, Rule 299; People v. Altenberg (1913) 260 Ill 191, 103 NE 67; People ex rel. Cromer v. Maywood (1943) 381 Ill 337,45 NE 617; Kansas Stats. § 60-1202; French v. Cowan (1887) 79
Me 426; 10 A 335; Attorney General v. Loomis (1917) 225 Mass 372, 114 NE 676; Brierly v. Walsh (1938) 299 Mass 292, 12 NE 2d 827; State ex rel. Patterson v. Land (1957) 231 Miss 529, 95 So 2d 764; State ex rel. Bornefeld v. Kupferle (1869) 44 Mo 154; State ex inf. Anderson ex rel. Boothe v. Moss (1915) 187 Mo App 151, 172 SW 1180; State ex rel. Johnson v. Hagemeister (1955) 161 Neb 475, 73 NW 2d 625; Shear v. County Board of Commissioners (1972) 187 Neb 849,195 NW 2d 151; State ex rel. Mitchell v. Tolan (1868) 33 N.J.L. 195; State ex rel. Butler v. Callahan (1895) 4 ND 481, 61 NW 1025; Stearns v. School Dist. (ND 1971) 185 NW 2d 641; New York Executive Law § 63-b; Leedom v. Thomas (1977) 473 Pa 193, 373 A 2d 1329; South Carolina Code § 15-63-80; Sinclair v. Young (1902) 100 Va 284, 40 SE 908; Smith v. Baugham (1938) 194 Wash 78, 76 P 2d 1022; Municipal Court ex rel. Tuberg v. Beighle (1981) 28 Wash App 141, 622 P 2d 405, affd. 96 Wash 2d 753, 638 P 2d 1225.
2 Hampson v. State ex rel. Buckson (Del. 1967) 233 A 2d 155; Spykerman v. Township of Chester (1980) 491 Pa 470, 421 A 2d 641; Lake v. State (1882) 18 FlaSOl; Swaringenv. Poplin (1937) 211 NC 700, 191 SE 746 (can determine if election fraudulent); State ex rel. Pryor v. Axness (1913) 31 SD 125, 139 NW 791. A certificate of election is not conclusive in a quo warranto action. Tiegs v. Patterson (1959) 81 Idaho 46, 336 P 2d 687.
3 Carroll Township School Board Vacancy Case (1962) 407 Pa 156, 180 A 16, 17; Code of Alabama § 6-6-598.
4 Commonwealth ex rel. Kirkpatrick v. Denworth (1891) 145 Pa 172, 22 A 820.
5 "To justify a resort to the extraordinary remedy...there must be an office legally authorized and constituted." State ex rel. Stage v. Mackie (1909) 82 Conn 398, 74 A 759, 761; Winter v. Mack (1940) 142 Fla 1, 194 So 225; Richter v. Burdock (1913) 257 Ill 410, 100 NE 1063; Commonwealth v. Fowler (1852) 10 Mass 295; State v. Greer (1910) 86 Neb 88, 124 NW 905; Hill v. State (1930) 157 Miss 648, 128 So 878; State v. O'Brien (1890) 47 Ohio St 464, 25 NE 121, 124; Commonwealth v. Meeser (1863) 44 Pa 341; Harness v. State (1890) 76 Tex 566, 13 SW 535.
6 O'Neal v. Fairley (1941) 190 Miss 650, 200 So 722; State ex rel. Lochschmidt v. Raisler (1908) 133 Wis 672, 114 NW 118.
7 Shells v, Flynn (1937) 163 Misc 506, 299 NYS 20, affd. 252 App Div 140, 297 NYS 705 (incumbent had died before action brought).
8 Seavey v. Van Hatten (1949) 276 App Div 260, 94 NYS 2d 402.
9 Kurd v. Beck (1896) 88 Kan 11, 45 P 92; State v. Powell (1897) 101 Iowa 382, 70 NW 592; Meyer v. Strouse (1966) 422 Pa 136, 221 A2d 191.
10 State ex rel. Feltman v. Hughes (Fla 1951) 49 So 2d 591; State ex
rel. Palmer v. Perpich (1971) 289 Minn 149, 182 NW 2d 182 (Lt.Gov.); State ex inf. McKittrick v. Murphy (Mo 1941) 148 SW 2d 527; State ex rel. Schneider v. Bennett (1976) 219 Kan 285, 547 P 2d 786.
11 People v. Taylor (1918) 281 Ill 355, 117 NE 1047; People v. Board of Review (1960) 19 Ill 2d 424, 167 NE 2d 553; State ex
rel. Landis v. Valz (1934) 117 Fla 311, 157 So 214.
12 State ex rel. Chambers v. Bates (1936) 233 Ala 251, 171 So 370; State ex rel. Smith v. Bohannan (1967) 101 Ariz 520, 421 P 2d 877; Iowa Rules of Civil Procedure, Rule 299; Kansas Stats. § 60-1202; State ex inf. McKittrick, Attorney General v. Wymore (1938) 343 Mo 98, 119 SW 2d 941; State ex inf. Roberts v. Buckley (Mo 1976) 533 SW 2d 551; State ex rel. Corrigan v. Gillon (1980) 64 Ohio St 2d 135,413 NE 2d 828; Commonwealth v. Allen (1872) 70 Pa 465; South Carolina Code § 15-63-60; People v. Shawver (1924) 30 Wyo 366, 222 P 11.
13 State ex rel. Landis v. Ward (1935) 117 Fla 585, 158 So 273 (surveyor); Jansky v. Baldwin (1926) 120 Kan 332, 243 P 302 (supt. of schools); State v. Jones (1979) 202 Neb 488, 275 NW 2d 851.
14 State ex rel. Walters v. Harris (Mo 1962) 363 SW 2d 580.
§ 4.04
1 "A public office is the right, authority, and duty created by law by which for a given period, either fixed by law or ending at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." State ex rel. Gray v. King (Ala 1981) 395 So 2d 6,7; "The most general characteristic of a public officer, which distinguishes him from a mere employee, is that a public duty is delegated and entrusted to him, as agent, the performance of which is a part of the governmental functions of the particular unit for which he, as agent, in acting." Coulter v. Pool (1921) 187 Cal 181, 201 P 121, 123; "It is the work to be performed or the duties to which one may be assigned that determines his status as an officer or an employee." Cumming v. Carr (1924) 69 Cal App 230, 230 P 987, 988. "Generally, quo warranto is appropriate only when there is involved a public office in the sense that the incumbent exercises some of the sovereign powers of government." State v. Democratic County Central Committee (1952) 40 Cal 2d 91, 251 P 2d 321, 322.
2 Akers v. State ex rel. Witcher (1968) 283 Ala 248, 215 So 2d 578; State ex rel. Sathre v. Quickstad (1936) 66 ND 689, 268 NW 683.
3 People v. Rapsey (1940) 16 Cal 2d 636, 107 P 2d 388.
4 Michael v. State ex rel. Welch (1909) 163 Ala 425, 50 So 929.
5 State ex rel. Watkins v. Fernandez (1932) 106 Fla 779, 143 So 638.
6 Commonwealth ex rei Parks v. Wherry (1930) 302 Pa 134, 152 A 846.
7 Clark v. Long (1922) 152 Ga 619, 111 SE31.
8 Swaringen v. Poplin (1937) 211 NC 700, 191 SE 746.
9 State ex rel. Karnachan v. Roberts (1919) 203 Ala 325, 83 So 49.
10 State ex rel. Landis v. Ward (1935) 117 Fla 585, 158 So 273.
11 State ex rel. Miller v. Richardson (1981) 229 Kan 234, 623 P 2d 1317.
12 State ex rel. Stage v. Mackie (1909) 82 Conn 398, 74 A 759.
13 Attorney General ex rel. Bashford v. Barstow (1855) 4 Wis 567.
14 State ex rel. Watson v. Friend (1892) 29 Fla 581, 11 So 182.
15 Leedom v. Thomas (1977) 473 Pa 193, 373 A 2d 1329.
16 State ex rel. Martin v. Ekern (1938) 228 Wis 645, 280 NW 393, noted in 1939 Wise L Rev 150.
17 Rogers v. Croft (1948) 203 Ga 654, 47 SE 2d 739; Lindquist v. Lindholm (1932) 258 Mich 152, 241 NW 922; Ham v. State ex
rel. Buck (1908) 156 Ala 645, 47 So 126.
18 Townsend v. Carter (1932) 174 Ga 759, 164 SE 49. State ex rel. Fox v. Brewster (1954) 140 W Va 235, 84 SE 2d 231. State ex rel. Black v. Taylor (1907) 208 Mo 442, 106 SW 1023.
19 State ex rel. Tomasic v. Cahill (1977) 222 Kan 570, 567 P 2d 1329.
20 State ex rel. Crance v. Kennedy (1978) 53 Ohio St 2d 166, 373 NE 2d 383.
21 Leek v. Theis (1975) 217 Kan 277, 538 P 2d 1407.
22 State ex rel. Jones v. Lockhart (1954) 76 Ariz 390, 265 P 2d 447. But contra: State ex rel. Attorney General v. Tomlinson (1878) 20 Kan 692.
23 Spykerman v. Levy (1980) 491 Pa 470, 421 A 2d 641.
24 People ex rel. Palmer v. Woodbury (1859) 14 Cal 43.
25 Johnson v. State (1901) 132 Ala 43, 31 So 493; Beverly v. Hattiesburg (1904) 83 Miss 621, 36 So 74; State v. Shores (1916) 48 Utah 76, 157 P 225.
26 Shibla v. Township Committee (1948) 137 N.J.L. 692, 61 A 2d 242.
27 People ex rel. Page v. Dannelly (1939) 139 Fla 320, 190 So 593.
28 Brodman v. Rade (1925) 101 N.J.L. 207, 127 A 249.
29 Lehman v. Tucker (1977) 470 Pa 362, 368 A 2d 670; State ex rel.
Freeman v. Ponder (1951) 234 NC 294, 67 SE 2d 292; Ferzacca v. Freeman (1917) 240 Mich 682, 216 NW 469.
30 People v. Shawver (1924) 30 Wyo 366, 222 P 11.
31 State ex rel. Muirhead v. State Board of Election Commissioners (Miss 1972) 259 So 2d 698.
32 State ex rel. Patterson v. Land (1957) 231 Miss 529, 95 So 2d 764.
33 Martini v Demuro (1948) 26 NJ Misc 182, 58 A 2d 597.
34 Eason v. Majors (1923) 111 Neb 288, 196 NW 133.
35 Jones v. State (1949) 207 Miss 208, 42 So 2d 123.
36 Greenough v. Lucey (1907) 28 Rl 230, 66 A 300; Brundage v. Brady (1922) 302 Ill 576, 135 NE 87; Attorney General v. Barry
(1907) 74 N.H. 353, 68 A 192.
37 Burkett ex rel. Leach v. Ulmer (1940) 137 Me 120, 15 A 2d 858; In re Bewley (1930) 138 Misc 108, 245 NYS 105; State v. Carrington (1922) 194 Iowa 785, 190 NW 390.
38 State ex rel. Watkins v. Fernandez (1932) 106 Fla 779, 143 So 638, 86 ALR 240; Jarman v. Mason (1924) 102 Okl 278, 229 P 459; Roberts v Marshall (1912) 33 Okl 716, 127 P 703.
§ 4.05
1 State ex rel. Childs v. Board of Commissioners (1897) 66 Minn 519, 69 NW 925; State ex inf. Rosenberger v. Town of Bellflower
(1908) 129 Mo App 138, 108 SW 117; State ex rel. White v. Town of Addison (1955) 262 Ala 139, 77 So 2d 663; Williams v. McClelland (1953) 119 Cal App 2d 138, 259 P 2d 1; State v. Leatherman (1881) 38 Ark 81; People v. Neibrugge (1910) 244 Ill 82, 91 NE 84; Beavers v. State (1895) 60 Ark 124; Hey ward v. Hall (1940) 144 Fla 344, 198 So 114; Village of Otalin v. Tilton (1918) 281 Ill 601, 117 NE 999; People ex rel. Kingsland v. Clark (1877) 70 NY 518.
2 State v. Consolidated Independent School Dist. (1955) 246 Iowa 566, 68 NW 2d 305; State v. School Dist. (1934) 148 Ore 273, 31 P 2d 751, 36 P 2d 179; State ex rel. Collins v. Jackson (1919) 119 Miss 727, 81 So 1 (county); State ex rel. Brown v. Wilson (1908) 216 Mo 215,^115 SW 549 (drainage dist.); Hazelton-Moffit Special School Dist. v. Ward (ND 1961) 107 NW 2d 636m 644.
3 Oakland Municipal Improvement League v. City of Oakland (1972) 23 Cal App 3d 165, 100 Cal Rptr 29.
4 Santa Clara County v. Hayes Co. (1954) 43 Cal 2d 615, 275 P 2d 456.
5 State v. Bradford (1859) 32 Vt 50; Cheshire v. People (1886) 116 Ill 493; People v. Spring Valley (1889) 129 Ill 169; State v. Uridill (1893) 37 Neb 371, 55 NW 1072; Virginia Code § 8.01-636.
6 De Kalb v. State (Tex Civ App 1934) 71 SW 2d 299; State v. Topeka (1883) 30 Kan 653, 31 Kan 452; People ex rel. City of Des Plaines v. Mount Prospect (1975) 29 Ill App 3d 807, 331 NE 2d 373; Gurtz v. City of San Bruno (1935) 8 Cal App 2d 399, 48 P 2d 142; Attorney General v. Methuen (1921) 236 Mass 564, 129 NE 662. Quo warranto is proper to reach "not only usurpation, but also abuses of either corporate charters or particular franchises. And this proceeding is apt whether its purpose be to dissolve a corporation or to merely annul and forfeit a particular franchise." State ex re. Weatherly v. Birmingham Waterworks (1913) 185 Ala 368, 64 So 23, 27.
7 State ex rel. Harrington v. Pompano (1939) 136 Fla 730, 188 So 610.
8 State ex rel. Kansas City v. Harris (1948) 357 Mo 1166, 212 SW 2d 733; State ex rel. Childs v. Board of Commissioners (1897) 66 Minn 519, 69 NW 925; Sabatini v. Jayhawk Construction Co. (1974) 214 Kan 408, 520 P 2d 1230; State ex rel. Martin v. City of Gadsden (1925) 214 Ala 66, 106 So 229; People ex rel. Mosk v. City of Santa Barbara (1961) 192 Cal App 2d 342, 13 C.R. 423; People ex rel. Swindell v. City of Los Angeles (1928) 93 Cal App 532, 269 P 2d 934; Rowan v. City of Shawneetown (1941) 378 Ill 289, 38 NE 2d 2; Attorney General v. Holihan (1874) 29 Mich 116; De Kalb v. State (Tex Civ App 1934) 71 SW 2d 299; People ex rel. County of St. Clair v. Belleville (1981) 84 Ill 2d 1, 417 NE 2d 125; Cipowski v. Calumet City (1926) 332 Ill 575, 153 NE 613; People ex rel. Universal Oil Products v. Village of Lyons (1948) 400 Ill 82, 74 NE 2d 33; City of South Miami v. State ex rel. Gibbs (1940) 143 Fla 524, 197 So 109.
9 State v. Hailey (1981) 102 Idaho 511, 633 P 2d 576.
10 People ex rel. Bait v. Riordan (1889) 73 Mich 508, 41 NW 482.
11 City of Uniontown V. State ex rel. Glass (1905) 145 Ala 471, 39 So 814 (sale of alcohol).
12 State ex rel. Burnquist v. Village of North Pole (1942) 213 Minn 297, 6 NW 2d 458. "Breaches of the contract, which amount to abuses of a franchise, may support an information for the purpose of forfeiting the franchise or the charter of the offender." State ex rel. Weatherly v. Birmingham Waterwords (1913) 185 Ala 368, 64 So 23, 27. l
13 People v. Wilson (1960) 20 Ill 2d 568, 170 NE 2d 605.
14 City of Winter Haven v. State ex rel. Landis (1936) 125 Fla 392, 170 So 100; Attorney General v. Methuen (1921) 236 Mass 564, 129 NE 662, 668.
15 State ex rel. Werts v. Rogers (1894) 56 N.J.L. 480, 28 A 726, 29 A 173. And cf. State ex rel. Palmer v. Perpich (1971) 289 Minn 149, 182NW2d 182, 184.
16 State ex rel. Wurn v. Kasserman (1938) 131 Fla 234, 179 So 410, 412 "Where the purpose or effect of the proceedings is to attack the validity of the municipal corporation and the legal existence of its franchise, the proceedings can only be brought by the attorney general in the name of the State."; Babcock v. Kansas City (1966) 197 Kan 610, 419 P 2d 882 (no quo warranto by private citizen to attack annexation); State ex rel. Wetzel v. Tracy (1892) 48 Minn 497, 51 NW 613 (no quo warranto to test validity of incorporation); Demarest v. Wickham (1875) 63 NY 320 (no quo warranto to restrain allegedly unauthorized powers).
17 State ex rel. Banta v. Greer (1910) 86 Neb 88, 124 NW 905 (with consent of county attorney, elector could bring quo warranto to attack office holders on the ground the village did not lawfully exist).
§ 4.06
1 Alaska Stats. § 09.50.310; Illinois Rev. Stats., ch. 110, par. 18-101; Green v. People (1894) 150 Ill 513, 37 NE 842; Massachusetts Genl. Laws ch. 249, § 6; Attorney General v. Gay (1910) 162 Mich 612, 127 NW 814; People ex rel. Haberman v. James (1896) 5 App Div 412, 39 NYS 313; People v. Loew (1896) 19 Misc 248, 44 NYS 42; Virginia Code § 8.01-636.
2 State v. Fidelity and Casualty Ins. Co. (1888) 39 Minn 538 41 NW 108; State v. Somerby (1889) 42 Minn 55,43 NW 689; Belle Island Inv. Co. v. Feingold (Fla App 1984) 453 So 2d 1143.
3 State v. Central Purchasing Co. (1929) 118 Neb 383, 225 NW 46. Wright v. Lee (1892) 2 SD 596.
§ 4.07
1 Hawaii Rev. Stats. § 659-2 Miller v. American Tobacco Co. (1899) 56 NJ Eq 847,42 A 1117; People ex rel. Kingland v. Clark (1877) 70 NY 518 (dictum).
2 It reaches "not only usurpation, but also abuses of either corporate charters or particular franchises. And this proceeding is apt whether its purpose be to dissolve a corporation or to merely annul and forfeit a particular franchise." State ex rel. Weatherly v. Birmingham Waterworks (1913) 185 Ala 368, 64 So 23, 27; Commonwealth v. American Baseball Club (1927) 290 Pa 136, 138 A 497 (Sunday baseball); California Code of Civ. Proc., ch. 5, § 803; People ex rel. Clark v. Milk Producers Assn. (1922) 60 Cal App 439, 212 P 957; State v. Minnesota Thresher Mfg. Co. (1889) 40 Minn 213, 226, 41 NW 1020; State v. York Light & Heat Co. (1915) 113 Me 144, 93 A 61; People v. Bleecker St. & F. Ferry Co. (1910) 201 NY 594, 95 NE 1136, affg. 140 App
Div 611, 125 NYS 1045; State ex rel. York v. Board of County Commissioners (1947) 28 Wash 2d 891, 184 P 2d 577; State ex
rel. Troy v. Lumbermen's Clinic (1936) 186 Wash 384, 58 P 2d 812; State ex rel. Dunbar v. American University (1926) 140 Wash 625, 250 P 52; People ex rel. Los Angeles Bar Assn. v. California Protective Corp. (1926) 76 Cal App 354, 244 P 1089 (practice of law).
3 State v. Minnesota Thresher Mfg. Co. (1889) 40 Minn 213, 41 NW 1020.
4 Commonwealth v. American Baseball Club of Philadelphia (1927) 290 Pa 136, 138 A 497; State ex rel. Hadley v. Delmar Jockey Club (1906) 200 Mo 34, 92 SW 185, 98 SW 539, writ of error refused (1910) 210 US 324.
5 Alabama Code § 6-6-590; West Virginia Code § 7.56.110; Wyoming Stats. Ann. § 1-31-102; Commonwealth v. Banks (1901) 198 Pa 397, 48 A 277 (fraudulent advertising practice); State v. Minnesota Thresher Mfg. Co. (1889) 40 Minn 213, 226, 41 NW 1020; Commonwealth v. Potter County Water Co. (1905) 212 Pa 463, 61 A 1099 (polluted water); Illinois Rev. Stats., ch. 110, par. 18-101; People v. White Circle League of America (1951) 405 Ill 564, 97 NE 2d 811; State ex rel. Attorney General v. Madison St. R. Co. (1888) 72 Wis 612, 40 NW 487; State on inf. Jones v. West End L. & P. Co. (1912) 246 Mo 653, 152 SW 76; State ex inf. Otto v. Kansas City College of Medicine & Surgery (1926) 315 Mo 101, 285 SW 980 South Carolina Code § 15-63-30; Virginia Code § 8.01-636; State ex
rel. Dunbar v. American University (1926) 140 Wash 625, 250 P 52; Commonwealth ex rel. Truscott v. Yiddisher Kultur Farband (1955) 382 Pa 553, 116 A 2d 555.
6 Commonwealth v. American Baseball Club (1927) 290 Pa 136, 138 A 497, 501.
7 State on inf. McKittrick v. American Insurance Co. (1940) 346 Mo 269, 140 SW 2d 36 (bribery of public official).
8 State ex rel. Denu v. Rapid City Library Assn. (1913) 32 SD 248, 142 NW 973; Virginia Code § 8.01-636; State ex inf. Me Kittrick v. Murphy (Mo 1941) 148 SW 2d 527; Commonwealth v. Neptune Club (1936) 321 Pa 574, 184 A 542.
9 Sherwood v. Mammoth Vein Coal Co. (1921) 193 Iowa 365, 185 NW 279; Washington County Kennel Club v. State ex rel. McAllister (Fla App 1959) 107 So 2d 176; Petition of Collins-Doan Co. (1950) 3 NJ 382, 70 A 2d 159.
10 Massachusetts Genl. Laws ch. 249, § 6; Utah Rulesof Civil Procedure, Rule 65B(d); West Virginia Code § 53-2-4; South Dakota Codified Laws § 21-28-12.
§ 4.08
1 Alaska Stats. § 09.50.310; California Code of Civil Procedure ch. 5, § 803; People v. Healy (1907) 230 Ill 280, 82 NE 599; New York Executive Law § 63-b; Commonwealth v. Morris (1921) 269 Pa 476, 112 A 770.
2 Garcia v. Sedillo (1950) 70 Ariz 192, 218 P 2d 721; Gentry-Futch Co. v. Gentry (1925) 90 Fla 595, 106 So 473; Hornaday v. Goodman (1928) 167 Ga 555, 146 SE 173; Hawaii Rev. Stats. § 659-1; State ex rel. Moss v. Willis (La App 1939) 192 So 138; Leidenheimer v. Schutten (1940) 194 La 598, 194 So 32; New York Executive Law § 63-b; Dollenmayer v. Ryder (1939) 205 Minn 207, 286 NW 297; State ex rel. Mitchell v. Koran (1900) 22 Wash 197, 60 P 135; Davidson v. State (1884) 20 Fla 784.
3 Burkett ex rel. Leach v. Ulmer (1940) 137 Me 120, 15 A 2d 858, 859; State v. North (1875) 42 Conn 79; Commonwealth v. Dearborn (1818) 15 Mass 125; Commonwealth v. Burrell (1847) 7 Pa 34.
4 Nakakuni y. Towse (1939) 34 Hawaii 897, 902: "private individuals in this jurisdiction have a right in the nature of quo warranto to try title to office in a private corporation" (interest as a stockholder is sufficient); Garcia v. Sedillo (1950) 70 Ariz 152, 218 P 2d 721 (claimant to office in fraternal benefit society).
5 State by inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 346; Garcia v. Sedillo (1950) 70 Ariz 192, 218 P 2d 721.
6 People ex rel. Michajlowski v. Tanaschuk (1942) 317 Ill App 130, 45 NE 2d 984.
7 Guaranty Loan Co. v. Fontanel (1920) 183 Cal 1, 190 P 177 (dictum); Hankins v. Newell (1907) 75 NJL 26, 66 A 929.
8 State ex rel. Barrick v. Davison (1922) 208 Ala 157, 93 So 870; Commonwealth v. Morris (1921) 269 Pa 476, 112 A 770.
9 Washington Rev. Code Ann § 7.56.020; State ex rel. Mitchell v. Koran (1900) 22 Wash 197, 60 P 135; Commonwealth v. Stevenson (1901) 200 Pa 509, 50 A 91.
10 People ex rel. Mijares v. Kniss (1960) 144 Colo 551, 357 P 2d 352; Attorney General ex rel. TerVree v. Geerlings (1885) 55 Mich 562, 22 NW 89. Contra: Harris v. Pounds (1879) 64 Ga 121.
§ 4.09
1 Alaska Stats. § 09.50.310; Illinois Rev. Stats, ch. 110, par. 18-101; New York Executive Law § 63-b; Hawaii Rev. Stats. § 659-1; Tonkin v. Kenworthy (1934) 112 NJL 274, 170 A 233; State v. Borah (1938) 51 Ariz 318, 76 P 2d 757.
State ex rel. Watkins v. Fernandez (1932) 106 Fla 779, 143 So 638, 639.
People ex rel. Cory v. Colorado High School Activities Assn. (I960) 141 Colo 382, 349 P 2d 381 (defendant held to be exercising a franchise); Winter v. Mack (1940) 142 Fla 1, 194 So 225 (a special privilege from government to do something not allowed to the public generally). Note, 18 Yale L.J. 58 (1908). States ex rel. Ellis v. Gerbing (1908) 56 Fla 603,46 SE 718 (when defendants claiming exclusive use of oyster beds in a river without any legislative grant); Whelchel v. State ex rel. Wiley (1886) 76 Ga 644 (defendants collecting tolls); People v. Utica Insurance Co. (1818) 15 Johns (NY) 358 (defendants engaged in business of insurance); Swarth v People ex rel. Paxton (1884) 109 Ill 621; State ex rel. v. Topeka (1883) 30 Kan 653, 2 P 587; West's Appeal (1870) 64 Pa 186; State v. Ramos (1855) 10 La Ann 420. State ex rel. Bauder v. Markle (1932) 107 Fla 742, 142 So 822.
§ 4.10
1 The "writ will never be granted where there is a complete and effective remedy by appeal, certiorari, writ of error, injunction or otherwise." Spykerman v. Levy (1980) 491 Pa 470, 421 A 2d 641; State ex rel. Johnson v. Southern Building & Loan Assn. (1902) 132 Ala 50, 31 So 375; State ex rel. Dallas v. Atlanta Mutual Insurance Co. (1917) 200 Ala 443, 76 So 375; State ex
rel. Gibbs v. Bloodworth (1938) 134 Fla 369, 184 So 1; State ex
rel. Landis v. Duval County (1932) 105 Fla 174, 141 So 173; Gardner Trust Co. v. Whitehall Corp. (1927) 260 Mass 239, 241, 157 NE 519; State ex rel. Burnquist v. Village of North Pole (1942) 213 Minn 297, 6 NW 2d 458; People ex rel. Danielson v. Village of Mound (1951) 254 Minn 531, 48 NW 2d 855; State v. Gates (1886) 35 Minn 385, 28 NW 927; State ex rel. Letcher v. Bearing (1913) 253 Mo 604, 162 SW 618; In re Hanover Township School Directors (1927) 90 Pa 95, 137 A 811.
2 State ex rel. Landis v. Duval County (1932) 105 Fla 174, 141 So 173, 176.
3 Williams v. Gates (1975) 235 Ga 651, 221 SE 2d 422; State ex inf. Ryan v. Bond (Mo 1977) 546 SW 2d 1; Burns v. Kurtenbach (SD 1982) 327 NW 2d 636; State ex rel. Murdoch v. Ryan (1912) 41 Utah 327, 125 P 666. Ferzacca v. Freeman (1927) 240 Mich 682, 216 NW 469. People ex rel. Barton v. Londoner (1889) 13 Colo 303, 22 P 764; Kane v. People (1876) 4 Neb 509; State ex rel. Watkins v. Fernandez (1932) 106 Fla 779, 143 So 638. Contra:
State v. Francis (1885) 88 Mo 557; State v. Marlow (1864) 15 Ohio St 114.
§ 4.11
1 "Any unreasonable delay...will justify a refusal." People ex rel. Universal Oil Products v. Village of Lyons (1948) 400 Ill 82, 79 NE 2d 33, 37; "Reasonable diligence in the assertion of an alleged right is especially important in proceedings quo war-ranto." Layle v. Adjutant General (1971) 384 Mich 638, 186 NW 2d559, 561 (ten years, laches); Sobocinski v. Quinn (1931) 330 Mich 386, 47 NW2Q655 (eight years, laches); State ex rel. Pooser v. Wester (1936) 126 Fla 49, 170 So 736 (laches and quo warranto denied when citizens waited four months to try to invalidate election); State ex rel. Pamperlin v. Oconto Elec. Co. (1917) 165 Wis 467, 161 NW 789 (seven years; laches); State v. Reiner (1931) 9 NJ Misc 950, 156 A 120 (almost three years).
2 Leedom v. Thomas (1977) 473 Pa 193, 373 A 2d 1329, 1332.
3 State ex rel. Phelps v. Kerstein (1913) 260 Ill 341, 103 NE 173; DeKalb v. State (Tex Civ App 1934) 71 SW 2d 299; State ex rel. Carroll v. Bastian (1965) 66 Wash 2d 546, 403 P 2d 896 (seven and a half years; no bar); Landis ex rel. Quigg v. Reeve (1932) 106 Fla 28, 142 So 654.
4 People ex rel. Black v. Bailey (1916) 30 Cal App 581,158 P 1036, 1037; McPhail v. People (1896) 160 Ill 77, 43 NE 382.
5 State ex rel. King v. Pratherville (Mo App 1976) 542 SW 2d 578; State ex inf. Otto xx ex rel. Harrington v. School District (1926) 314 Mo 315, 284 SW 135; State ex inf. Wallach ex rel. H.B. Deal & Co. v. Stanwood (Mo App 1948) 208 SW 2d 291; Independent School Dist. v. State Board of Education (Okl 1969) 451 P 2d 684; People ex rel. Hartke v. Roberts (1923) 308 Ill 497, 139 NE 870; State ex rel. Douglas v. School District (1902) 85 Minn 230, 88 NW 751; People v. Board of Education (1955) 3 Ill 2d 159, 120 NE 2d 887.
6 People v. Junior College District (1969) 42 Ill 2d 136, 139, 246 NE 2d 292, 294, followed in People ex rel. Cherry Valley Fire Protection Dist. v. City of Rockford (1972) 2 Ill App 3d 731, 277 NE 2d 736, 737, and People ex rel. Hanrahan v. Village of Wheeling (1976) 42 Ill App 3d 825, 356 NE 2d 806. Note also: People ex rel. Kidd v. Crowley (1913) 260 Ill 341, 103 NE 173.
7 State ex inf. McKittrick v. Seibert (1933) 228 Mo App 1133, 63 SW 2d 129, 134.
8 State ex inf. Shartel ex rel. Sikeston v. Missouri Utilities Co. (1932) 331 Mo 337, 53 SW 2d 394.
9 People ex rel. Jordan Co. v. Village of Forest View (1961) 21 Ill 2d 384,172 NE 2d 780; State ex rel. Black v. Bailey (1916) 30 Cal App 581, 158 P 1036; DeKalb v. State (Tex Civ App 1934) 71 SW 2d 299.
10 E.g., North Carolina Gen. Stats. § 1-522 (actions by private individuals claiming offices occupied by others must be brought within thirty days of time defendant inducted into office).
11 E.g., Illinois Rev. Stats, c.110, § 18-104 (no questioning by quo warranto the legal existence of a political subdivision when it has had a de facto existence for three years or more); Colorado Rev. Stats. § 89-12-7 (30 days when sought to question legal existence of recreation and park district).
12 E.g., Wyoming Stats. Ann. § 1-31-127 (quo warranto against corporation for forfeiture must be commenced in five years from act complained of; action against corporation for contested power cannot be brought after it has been exercised for twenty years; no action to oust corporate officer later than three years after cause arose).
§ 4.12
1 In re Sherwood (1914) 22 Hawaii 385; People ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855; "The damage to that private interest must be then occurring or certain to occur; the petitioner cannot rely on expected damage to his private interest." People ex rel. Durst v. Village of Germantown Hills (1977) 51 Ill App 3d 969, 367 NE 2d 426, 428; Mountain States Tel. & Tel. Co. v. People ex rel. Wilson (1920) 68 Colo 487, 190 P 513.
2 State ex rel. Johnson v. Mayor and City Council (1905) 142 Ala 661, 38 So 802.
3 People ex rel. Michajlowski v. Tanaschuk (1942) 317 Ill App 130, 45NE2d984.
4 Martin v. State ex rel. Gamble (1965) 277 Ala 456, 171 So 2d 848; People ex rel. Strong v. City of Whittier (1933) 133 Cal App 316, 24 P 2d 219; Attorney General ex rel. Andrews v. Kellman (1962) 365 Mich 519, 113 NW 2d 773. \
5 Layle v. Adjutant General (1971) 384 Mich 638, 186 NW 2d 559 (after expiration of term or even if it is so nearly expired that the issuing of the writ would be of no effect); Attorney General ex
rel. Barr v. Kent County Clerk (1973) 45 Mich App 406, 206 NW 2d 275; Martin v. State ex rel. Gamble (1965) 277 Ala 456, 171 So 2d 848; Meyer v. Strouse (1966) 422 Pa 136, 221 A 2d 191.
6 State ex inf. West ex rel. Thompson v. Heffernan (1912) 243 Mo 442, 148 SW 90.
7 People v. Muehe (1931) 114 Cal App 739, 300 P 829; Nichols v. MacLean (1886) 101 NY 526, 5 NE 347.
§ 4.13
1 Boytor v. City of Aurora (1979) 70 Ill App 3d 303, 388 NE 2d 449, 452, affd. 81 Ill 2d 308, 410 NE 2d 1.
2 People ex rel. Universal Oil Products v. Village of Lyons (1948) 400 111 82, 79 NE 2d 33, 37.
3 Dorsey v. Ansley (1884) 72 Ga 460, 462.
4 People ex rel. Leavitt v. Bass (1910) 15 Cal App 62, 113 P 695.
5 State ex rel. Landis v. Sovereign Camp, W.O.W. (1938) 131 Fla 867, 180 So. 33.
6 "It may refuse the writ or judgment of ouster, upon considerations of public policy, interest or convenience." City of Winter Haven v. State ex rel. Landis (1936) 125 Fla 392, 170 So 100, 108; Rouse v. Wiley (Ala 1983) 440 So 2d 1023, 1024; Boytor v. City of Aurora (1979) 70 Ill App 3d 303, 338 NE 2d 449, 452, affd 81 Ill 2d 308, 410 NE 2d 1; State on inf. McKittrick v. Seibert (1933) 228 Mo App 1133, 65 SW 2d 129, 134 ("The writ is not granted...where the ouster would not be in the public interest, or serve any good or purpose.").
7 People ex rel. Universal Oil Products v. Village of Lyons (1948) 400 Ill 82, 79 NE 2d 33, 37.
8 Rouse v. Wiley (Ala) 440 So 2d 1023, 1024 ("Even though an incidental benefit accrues to the relator, nevertheless, the writ should issue if it benefits the public good."); State v. School District (1934) 148 Ore 273, 31 P 2d 751, 36 P 2d 179; Boytor v. City of Aurora (1979) 70 Ill App 3d 303, 338 NE 2d 449, 452, affd 81 Ill 2d 308, 410 NE 2d 1. A court "should consider the justice and propriety of the proceeding." Commonwealth ex rel. Margiotti v. Union Traction Co. (1937) 327 Pa 497, 194 A 661, 667.
9 Attorney General v. Methuen (1921) 236 Mass 564,129 NE 662, 667.
10 City of Winter Haven v. State ex rel. Landis (1936) 125 Fla 392, 170 So 100; Attorney General v. Methuen (1921) 236 Mass 564, 129 NE 662, 668.
11 State ex rel. Bauder v. Markle (1932) 107 Fla 742 So 822.
Part Two
THE PROCEDURAL LAW
§4.14 COURTS AND VENUE
The state supreme courts customarily are empowered to grant quo warranto,1 and at times have exclusive authority where state officers are concerned.2
Frequently quo warranto proceedings can be brought before circuit,3 superior4 and district5 courts, and occasionally before intermediate appellate tribunals.6 Unless constitutional or statutory provisions are expressed so clearly as to be particularly beyond a reasonable doubt, the power of all state courts of general jurisdiction to entertain quo warranto actions will be deemed undisturbed.7
Although the All Writs Act authorizes all federal courts to issue all writs necessary or appropriate in aid of their jurisdiction and agreeable to the usages and principles of law,8 and there is decisional law that the circuit courts of appeal can issue the writ of quo warranto,9 it has been held that "except as otherwise specifically provided by statute, there is no original jurisdiction in the federal courts to entertain informations in the nature of quo warranto."10 The federal district court for the District of Columbia has quo warranto jurisdiction by the terms of a specific Congressional enactment.''
Venue is customarily set in the county in which the political subdivision is located where quo warranto concerns the validity of its incorporation, the exercise of powers or its ouster;12 it is usually in the county in which the political subdivision is located where the action involves the title of an officer, his claim to powers or his ouster;13 where private corporations are defendants venue is generally at their principal place of business or their registered office;14
where the action is brought against individuals for usurping franchise or privileges, venue is properly in the county of their residence or place of business.15 Where there are no particular venue statutes applicable to quo warranto actions, the place of suit is controlled by the general venue statutes of the jurisdiction.16
§ 4.15 STANDING - PUBLIC OFFICIALS
As principal legal officers of the states, attorneys-general are overwhelmingly accorded standing to bring quo warranto.l
Frequently county attorneys and prosecuting attorneys are authorized to bring actions of quo warranto.2
Attorneys general and prosecuting attorneys are accorded broad discretion in deciding whether to bring quo warranto,3 and it was said in 1963 that in California mandamus had never issued to compel the Attorney General to bring quo warranto.4 However, it was there recognized two years earlier that a citizen could compel such action by the Attorney General if he could "demonstrate that the Attorney General's refusal to sue was an extreme and clearly indefensible abuse of his discretion."5 Elsewhere, too, it is generally accepted that the discretion of an attorney general in refusing to bring quo warranto is not an arbitrary discretion but subject to mandamus if abused.6 The Pennsylvania Supreme Court has well said: "The attorney general or district attorney may not arbitrarily refuse either to bring the action or prevent the use of his name by a private relator. Should he do so, the party aggrieved by his failure may, in a proper case, compel his co-operation by mandamus."7 Alternatively, an aggrieved party has been able to secure from a court leave to file the suit himself.8 Admittedly, the burden is on the person trying to compel an attorney general or local prosecutor to file quo warranto to make a plain showing that the facts justified the action9 The Minnesota Court has said that it would take a case that "would be exceptional, and one in which it clearly appears that public interests require it" before it would reverse the decision of the attorney general.10
In Alabama judges of the circuit courts can initiate quo warranto actions.11
In California, by provisions of the Code of Civil Procedure, §811, the supervisors of any county or city, or the legislative body of
any municipal corporations, are authorized, without consent of the Attorney General, to bring quo warranto to prevent local usurpations of offices or privileges.12
Under statutes permitting municipal corporations to be relators in suits brought by attorneys general, they have been able to contest the title of individuals alleged to be usurping municipal offices.13
§ 4.16 STANDING PUBLIC OFFICIALS ON RELATION OF PRIVATE PERSONS
The statute of Anne in 1710 for the first time authorized a proper officer of the court, with leave of the court, to exhibit an information in the nature of quo warranto, at the relation of any person desiring to prosecute the same, to be called the relator.l This is deemed part of the common law we inherited from England in a number of States,2 and there is virtually everywhere in America statutes similarly empowering attorneys-general to bring quo warranto, not only on their own information, but also on the information, complaint or relation of private persons.3
Sometimes the statutes provide for action by the attorney general on his own "or at the relation of any person interested."4 Even without such wording, courts have held under this type of statute that a private person who wanted to be a relator in a qou warranto action brought by the attorney general must generally show a "special" interest, that is, one differing in kind and quantum from that of the general public.5 The purpose of this requirement, says the Missouri Court, "is to prevent the harassment of public officials at the whim of private persons."6
If the attorney general or other authorized legal officer consents to the relation of a private party, there is a good probability that the court will find the individual sufficiently interested, but it cannot be taken as a foregone conclusion.7 Under some of these statutes, if the attorney general refuses to accept the relation, the private person can go no further.8 Even where an attorney general has consented to a relation, cases have generally emphasized that the litigation continues as his responsibility and control.9 Absent statute, he has even been permitted to withdraw during the course of litigation over protests of the private relator.10 Statutes at times deny Attorneys
General power to dismiss the action after having consented to private relators.11
Even though statutes frequently provide that the Attorney General "shall" exhibit an information on request of relators, the language is construed as "may," courts being inclined to respect the discretion of attorneys-general in this matter.12
§ 4.17 STANDING - PRIVATE PERSONS BRINGING IN OWN NAME THE COMMON LAW
The great weight of authority at the American common law was to the effect that private individuals in their own name could not bring an action of quo warranto.1 There were a few cases holding that the Statute of Anne2 was part of our common law and that it could be construed to allow private persons to bring quo warranto with the leave of a court,3
Where, at the common law, the purpose or effect of the proceedings was to attack the validity of a municipal corporation and the legal existence of its franchise, the proceeding could only be brought by the attorney general and in the name of the state.4
Private parties at common law cannot by quo warranto attack the exercise of municipal powers by municipal corporations,5 nor question the right of such municipalities to exercise claimed franchises.6
At the common law private individuals cannot in their own name bring quo warranto to try the title to public office or to oust alleged usurpers.7
Actions in quo warranto to oust private corporations for having done acts of forfeiture were denied to private individuals, being brought only by the attorney general of the state.8
§ 4.18 STANDING - PRIVATE PERSONS BRINGING UNDER BROADLY WORDED STATUTORY AUTHORIZATIONS
In a number of States broadly worded statutes seemingly authorize quo warranto actions to be brought in particular instances by private individuals. The Alabama statute provides "An action may be commenced...in the name of the State against the offending corporation on the information of any person."1 The Supreme
Court has noted that the statute "has extended the right to institute such proceedings to a person giving security for costs of the action," adding: "But in such case, the action is still prerogative in character, brought in the name of the State, on the relation of such person, who becomes a joint party with the State."2 A companion statute authorizes an action to be commenced in the name of the State against offending parties,3 and the Supreme Court allows private persons to sue in quo warranto to remove unqualified persons from public office.4
The Georgia statute has long authorized quo warranto to be brought by any person "interested therein."5 The Supreme Court reported in 1930 that "it has been held by this Court that an information in the nature of a writ quo warranto may be legally instituted by a citizen and taxpayer in his own name, without the intervention of the state through its public officers."6 Residents, voters and taxpayers have been held to be sufficiently "interested" to bring quo warranto to test the right of a mayor and aldermen to office.7 "Every citizen of a town," says that Court, "has an interest in its municipal offices, which will support a quo warranto proceeding to test the right of incumbents thereto."8 In holding that "any citizen and taxpayer may file," a proceeding to declare an office vacant, the Georgia Court remarked: "The fact that the applicants were citizens and taxpayers made them 'interested' in the office, in the sense in which the word is used."9
While the Hawaii statute does not expressly authorize quo warranto to be brought by private persons, the statute states that the pleading is to be "sworn to if the application is made by a private individual,"10 and this has long given rise to a justified implication that private parties were intended to have standing.11 No special interest is required by an individual under the Hawaii statute,12 and it has been held that a resident, citizen and taxpayer can bring quo warranto to oust a person unlawfully occupying a public office.13
The Massachusetts statute accords to any person injured by the exercise of a franchise or privilege conferred by law by a private corporation or by persons claiming to be a private corporation the right to bring a quo warranto action for redress.14 Under this statute, quo warranto is denied where there is another adequate remedy available to the petitioner.15
The New Jersey statute provides that the proceeding in lieu of quo warranto "may also be instituted as of right against a person for usurping, intruding into or unlawfully holding or executing any office or franchise in this State, by any person who under the former practice, would have the requisite interest to exhibit an information in the nature of a quo warranto with the leave of court."16 Under the earlier statute, it had been held that a citizen and taxpayer of a municipality had standing to bring quo warranto to test the right of an incumbent to public office, so long as the petitioner was not attacking the validity of the existence of the government entity whose office was at issue,17 and now, even without leave of court, standing exists under the same circumstances, the New Jersey Court stating: "A taxpayer and inhabitant of the city or county...is interested in the due selection of its officers and he is entitled to interpose by information in the nature of quo warranto when such officer has been illegally selected."18 With reference to the present statute, a New Jersey court has said: "A proceeding in the nature of quo warranto involving a municipal office or position must under the former practice as well as now be brought by a citizen and taxpayer of the city unless he himself is a claimant to the office."19
In North Dakota the statute provides that quo warranto can be brought by "any person who has a special interest in the action" when (a) the defendant is alleged to be usurping a public office or one in a domestic corporation; (b) when the defendant is alleged to have forfeited his public office; and (c) when any person is acting as a corporation without having been lawfully incorporated.20 This statute has been held not to empower a private citizen to bring quo warranto to attack annexation by a municipality.21
The Pennsylvania statute provides that "the writ above may be issued upon the suggestion...of any person or persons desiring to prosecute the same."22 Pennsylvania courts have consistently construed "any person" to be only a person with a personal and special interest at stake.23 The Supreme Court has said:
"The words 'any person or persons desiring to prosecute the same' have uniformly been held to mean any person having an interest of his own to be affected, or a wrong to be redressed, separate and distinct from that of the Commonwealth or the community in general, and not to give a private person the use of the writ in the case of a public right involving no individual grievance. In the absence of such special interest, differing not
merely in degree but in nature and kind, from that of the public at large, a private individual cannot demand a judgment of ouster on a writ of quo warranto and this is particularly true where, as here, such a judgment would not place the plaintiff himself in office."24
If ouster would place the plaintiff in the office, he has an interest that satisfies the Court.25 Although the Court has said that "if judgment of ouster would not place him in office it cannot be said that he has such a right as would warrant a judgment of ouster against the official in office,"26 this is too broadly stated, and "a special and individual interest" can be found in other instances, as well.27 It is enough, the Court stated in 1980, "if a private person...has been specially damaged."28
In Virginia "any interested person" may apply by petition for a writ of quo warranto.29 The writ can be dismissed in the discretion of the court and it was once held that a citizen and taxpayer was not a sufficiently interested person under the statute.30 A claimant to a public office who makes out a prima facie case is a person interested under the statute.31
§ 4.19 STANDING PRIVATE PERSONS SUING IN OWN NAME UNDER STATUTES PERMITTING WITH LEAVE OF COURT
It is now fairly common for states by statute or court rule to allow private individuals, under certain circumstances at least, to bring actions in quo warranto (or its modern equivalent) with leave granted by court.'
Frequently by statute or rule the individual seeking leave must be an "interested person." Under the Illinois statute, "the petition must allege that the individual seeking relief has a private interest in the matter and that the action sought to be challenged by quo warranto has harmed that interest."3 Other courts have often said that "a person who has no greater interest than the public generally cannot maintain an action...."4 Generally claimants to the public office involved have been accepted as "interested persons,"5 and there has been expressed at times the unfortunate notion that only such claimants are "specially interested."6
Courts have on many occasions acknowledged that other individuals have sufficient interest to bring quo warranto in their
own name under these statutes. Courts have indicated individuals can be given leave of court to test both the title and acts of public corporations.7 A taxpayer was held to have a sufficient interest to test the right of a superintendent of a municipal waterworks to hold office.8 The New Jersey Court has aptly said: "A taxpayer and inhabitant of the city or county...is interested in the due selection of its officers and he is entitled to interpose by information in the nature of quo warranto where such officers have been illegally selected."9 Even though they had not sought the leave of court required by statute, taxpayers have been able to bring quo warranto to attack the validity of a school district organization, the appellate court remarking that it was then too late to question the adequacy of a request for leave.10 A town has been given leave to test by quo warranto the validity of the incorporation of a neighboring city, even though the attorney general had refused his consent.11 Qualified memers of a municipal council have been held to have a sufficient interest to bring a quo warranto action testing the title of other councilmen.12 So, too, four managers of a city were able to bring this action against another person who also claimed to be a manager of the city.13
Where quo warranto is available to test the title in private corporations, shareholders in such corporations have sufficient interest to bring the action under these statutes.14
The granting or denial of leave to file quo warranto is a matter within the sound discretion of the court,15 the Minnesota Court typically stating: "The granting or withholding of leave to file an information for a writ of quo warranto at the instance of a private individual, with or without the consent of the attorney general, rests in the sound discretion of the court."16
Statutes authorizing private persons to bring quo warranto in their own names customarily require them to post security for costs.17
§ 4.20 STANDING - PRIVATE PERSONS BRINGING IN OWN NAME UNDER STATUTES AUTHORIZING SUCH ACTION BY CLAIMANTS OF OFFICE INVOLVED
Statutes and court rules exist in some states specifically allowing claimants to an office to bring quo warranto either in their
own name or in the name of the state.1 The Utah Rule permits such action by one claiming either public or private office,2 and the Washington statute authorizes such action broadly whenever the petitioner "claims an interest in the office, franchise or corporations which is the subject of the information."3
Actions under the more limited statutes are restricted to suits to try title to public office,4 and limited to actions brought by persons in good faith claiming title to the office.5 Under the Washington statute, where persons other than claimants to offices can bring quo warranto, the Court permits action by claimants to office,6 but demands that others prove that their interest is "a special interest, not common with the interests of the community."7 Under the typical statute of this kind, a claimant to office need not secure leave of court before proceeding in quo warranto.8
Claimants of public offices have been able to bring quo warranto, either in their own name or the name of the state, not only under the foregoing statutes, but also under other variously worded statutes,9 and this is one of the very rare instances in which they were occasionally permitted to sue in quo warranto at the common law.10
The indicated New Jersey statute has been construed to place upon the plaintiff the burden of proving that the defendant incumbent lacks the necessary qualifications for the office.11 So, too, laches runs against private relators seeking office under the New Jersey legislation.12
§ 4.21 STANDING - PRIVATE PERSONS BRINGING IN OWN NAME UNDER STATUTES AUTHORIZING SAME AFTER ATTORNEY GENERAL HAS REFUSED TO BRING ACTION
Statutes and rules of court in a number of jurisdictions permit private individuals to bring quo warranto, either in their own name or in the name of the state, after they have requested the attorney general to commence such action and he has refused.l
Notwithstanding the unqualified language of the statutes, e.g. "a private person," "any citizen," "any elector", courts operating under these statutes have been inclined to rule that persons generally cannot bring quo warranto under these statutes, but that the action can be brought only by individuals with special interests.2 The
Wisconsin Court illustratively has said: "In quo warranto actions...a private person acting as relator must show that he has sustained or is in danger of sustaining injury as a result of the challenged act, and he must show a special interest. It is not sufficient that the relator has merely a general interest common to all members of the public."3 Although the earlier Illinois ruling that a citizen must have an interest different in kind and quantum from the general public4 was later overruled,5, Illinois courts currently hold that "the petition must allege that the individual seeking relief has a private interest in the matter and that the action sought to be challenged by quo warranto has harmed that interest." The appellate courts add: "The private interest alleged must be directly, substantially and adversely affected by the action sought to be challenged in the quo warranto proceeding. The damage to that private interest must be then occurring or certain to occur; the petitioner cannot rely on an expected damage to his private interest." Significantly, the court adds that "the private interest of one citizen may be an interest shared by other members of the community for purposes of establishing quo warranto standing."6
By the language of the Florida statutes actions are extended only to "any person claiming title to an office" but the Court has held nominees for a public office, having rights not shared by the general public, are entitled to bring quo warranto.7
The Colorado Court has construed its Rule as being inapplicable to test title to offices in unincorporated associations,8 but it authorizes actions to test title in both public offices9 and offices in corporations operating under Colorado statutory authority.I0 It has also been utilized to dissolve private corporations.11
Individuals have in many cases been held to have sufficient interest to bring quo warranto under these statutes and rules.12 A citizen, elector and taxpayer was able to bring quo warranto, upon refusal of the attorney general, to test the right of the Wisconsin Lieutenant Governor to office.13 A taxpayer was held to have standing under the Colorado Rule to attack the expenditure of funds by his school district to support a state high school activities association, which the Court ruled was operating under a "franchise."14 A resident, elector and taxpayer under the previous Colorado statute was held to have standing to bring quo warranto
to dissolve a private corporation for having sold alcoholic beverages.15 The interest of the petitioner as a business competitor has been held sufficient under the Wisconsin statute.16
Under this type of statute, citizens bringing quo warranto are customarily obligated to post adequate security for costs.17
§ 4.22 STANDING - PRIVATE PERSON BRINGING WITH LEAVE OF ATTORNEY GENERAL
Under California law a private party seeking to bring quo warranto must submit a "leave to sue" application to the Attorney General.1 Reportedly, attorneys-general have "repeatedly issued" denials.2
By North Carolina law leave of the attorney general must be sought by private applicants for quo warranto, but the statute interestingly provides that the attorney general "shall grant leave that it may be brought in the name of the State, upon the relation of such applicant, upon the applicant tendering to the Attorney General satisfactory security to indemnify the State against all costs and expenses which may accrue in connection with the action."3 With leave of the Attorney General private persons have been able to bring quo warranto to test the right of persons to various public offices.4
§ 4.23 STANDING - PRIVATE PERSONS BRINGING UNDER STATUTES PROVIDING SUCH AUTHORITY WHERE LOCAL GOVERNMENT OFFICES ARE INVOLVJED
There are statutes authorizing quo warranto actions by private individuals whre matters of particularly local concern are involved. Thus, a New Jersey statute allows a proceeding in lieu of quo warranto by any person who believes himself entitled to either a municipal office or franchise.l
A Wisconsin statute provides "Such action may be brought in the name of the State by a private person on personal complaint... when the office usurped pertains to a county, town, city, village, school district or vocational, technical and adult education district."2 A commentator has written that "in a great number of Wisconsin cases, a person who laid no claim to the office in question
was allowed to bring quo warranto proceedings to determine by what authority the defendant held a public office, the only interet of the relator in the action being that he was a taxpayer, property owner and resident of the district affected."3 It is unclear as to which statute he was referring, but the statement may only be accurate where the attorney general had been requested to bring action under Wisconsin Statutes Annotated 784.04(2) and had refused.
§ 4.24 PLEADING AND PRACTICE GENERALLY
Pleading and practice in quo warranto proceedings are now generally the same as in civil action in the jurisdiction, except where specifically changed by statute or court rule.1
Absent all statutes and court rules, pleading and practice is to conform to common law rules.2 At the common law the practice customarily proceeded thus: (a) an applicant presented to a court a verified petition or an application for leave to file an information; (b) a rule nisi then issued requiring the respondent to show cause why an information should not be issued against him; (c) upon the return, the rule was made absolute if the respondent did not show cause.3
As in civil practice generally under modern statutes, courts have broad discretion whether to permit amendments of pleadings in quo warranto actions.4
Intervention is customarily possible under the usual rules prevailing in the jurisdiction.5
Under modern statutes and court rules the claims to office of several individuals can be adjudicated in a single action in the nature of quo warranto.6
§ 4.25 INITIAL PLEADING OF THE APPLICANT APPLICATION FOR LEAVE TO FILE
In years past it was necessary in much of America to begin proceedings for an information in the nature of quo warranto by seeking leave of a court to file such application,l and even today in a number of States this is the initial process in seeking the writ, the information or the modern statutory equivalent.2
An application for leave generally must clearly state all the facts that would justify a court in granting the writ, rule or order.3 The Michigan Court has said: "The application should be so clear and positive in its statement of facts as to make out a clear case of right. The granting or withholding leave to file an information in the nature of quo warranto is discretionary. The law requires a precise and positive showing before the court will interfere in such a proceeding."4 Conclusions of law are not adequate.5 However, where the defendant has allegedly usurped an office or franchise belonging to the state, if has been held at times that it is only necessary for the state to allege that it is being exercised without lawful authority.6
Frequently leave is granted ex parte,7 the majority rule being that notice of intent to file application for leave is not required except when mandated by statute.8 Under statutes courts may require notice to the named defendant and a hearing before granting leave.9
Statutes frequently require applicants seeking leave to post security for costs.10
Everywhere granting or denial of leave to file an information in the nature of quo warranto or its modern statutory equivalent is in the sound discretion of the court.11 The Illinois Supreme Court has accurately observed:
"When the writ of quo warranto is sought for the pupose of enforcing private rights, any unreasonable delay, acquiescence or inequitable conduct on the part of the relators, as well as a consideration of public interest or convenience, will justify a refusal to grant leave to file such complaint...."12
If the court decides to grant leave, notice is then given to the named defendant or defendants.13
§ 4.26 THE INITIAL PLEADING OF THE APPLICANT - THE COMPLAINT, PETITION OR INFORMATION
Generally, as in other civil actions, the initial pleading of an applicant for quo warranto or its statutory equivalent is denominated a complaint.1 Occasionally it is referred to as a petition,2 or an information.3
When the attorney general brings the action in quo warranto in vindication of a public right, it has customarily only been necessary that he allege in general terms that the defendant is unlawfully usurping a public office or franchise, there being no need to set forth the particular facts.4 Even when a private individual is bringing this kind of action to vindicate public rights, it has not ordinarily been necessary for him to do more than allege the defendant was usurping the public office or franchise without lawful authority.5 The rule permitting such broad pleading has often been criticized, and modern statutes have been drawn so as to require greater specificity.6
When an individual is the real party in interest in bringing action for quo warranto, his pleading must positively, with certainty and specificity set forth the facts on which he relies.7 They must be set forth clearly and without ambiguity,8 sufficient to indicate the unlawful nature of the defendant's actions.9 Legal conclusions are not sufficient.10 In some states the complaint must allege that the individual seeking relief has a private interest in the matter and that the action sought to be challenged by quo warranto has harmed that interest.11 When an individual making application for quo warranto is able, as under many statutes, to assert his own claim to the office occupied by the incumbent defendant, the plaintiff must set forth facts indicating his own right to the office.12
When the action is initiated by a private individual he must ordinarily deposit security for costs.13
When a complaint is brought on the information of a private individual, it is usually required that his name be joined as a plaintiff with the state.14
Customarily, where action is begun by a private individual, the complaint, petition or information must be verified,15 and it must be served on the named defendants under the usual rules in the jurisdiction.16
§ 4.27 INITIAL PLEADING OF THE DEFENDANT
The only necessary defendants in quo warranto are the individuals usurping an office or franchise, or having done acts justifying forfeiture of the same.' Governmental entities or private corpora-
tions are not necessary defendants except in the instance where the applicant for quo warranto seeks to question the validity of their existence or institutionally asserted powers.2 Modern statutes frequently allow the naming of all claimants to a contested office as defendants.3
If the complaint, or other initial pleading of the applicant, is defective in law a defendant can attack the validity of the pleading by demurrer.4 The demurrer admits all well-pleaded allegations of fact contained in the pleading of the applicant, but not conclusions of law.5 Affirmative defenses cannot be included in demurrers.6
In some jurisdictions the applicant's initial pleadings can be attacked by motions to dismiss,7 motions to quash8 or motions to strike the complaint.9 These, like demurrers, admit all well-pleaded allegations of fact contained in the plaintiffs pleading.10 The whole range of motions available in civil actions is customarily available in quo warranto,'' including, where leave has been granted by court, a motion to set aside the order granting leave to file.12
Where defendants desire to indicate they were not usurping the particular office or function, to show that they were acting lawfully, or to interpose any other affirmative defense, they can file answers.13 An answer, to be effective, must state facts showing either that the act alleged was not done, or that the act was done with lawful authority.14 Answers must be clear and specific.15 A general denial of allegations or simple legal conclusions are not enough.16 All well-pleaded allegations of fact in the complaint are taken as true if not specifically denied in the answer.17 A defendant, even the incumbent in office, cannot in quo warranto attack the right of the relator to the office. "Whether the relator is entitled to the office," says the California Court, "is a matter which does not concern the defendant."18 Customarily, an answer must be supported by an affidavit that allegations contained therein are true to the best of the defendant's knowledge, information and belief.19 Counterclaims are not ordinarily permitted by defendants in quo warranto proceedings.20
When other claimants to the office in question, or other interested parties, have been permitted by court to intervene, they, too, can file answers to the plaintiffs complaint.21
§ 4.28 ADDITIONAL PERMISSIBLE PLEADINGS
Although at times the only pleadings permissible in quo warranto are the petition and the answer,1 today in many jurisdictions, after the answer or return of the defendant has been filed, a number of alternative pleadings are available to a plaintiff relator. Commonly, a plaintiff can file a reply or replication to the answer,2 and such replications can usually set up new matter.3 To prevent undue protraction of litigation, plaintiffs are at times limited to a single replication.4
It is at times possible for a plaintiff to demur to the answer,5 or to move for judgment on the pleadings.6 In these instances, all well-pleaded facts in the answer or return are deemed admitted.7
Once the plaintiff/relator has submitted a replication to the answer of the defendant, the latter can if the reply contains only conclusions or is otherwise insufficient in law properly demur to the replication.8
Modern statutes, recognizing the civil action nature of quo warranto, have at times expressly indicated the availability to litigants of all motions customarily available in the jurisdiction.9
§ 4.29 THE HEARING
Upon filing of the answer or other permitted pleading of the defendant/respondent, quo warranto proceedings are customarily expeditiously set for hearings, when there are disputed facts.1 There is a right to a speedy trial, guaranteed at times by statutes.2
When quo warranto proceedings are commenced in appellate courts, and factual issues become evident, such courts can either send the proceeding to a master or referee for the taking of evidence,3 or send the case to a lower court for trial.4
There is no constitutional right to trial by jury when proceedings in quo warranto are held in appellate courts.5 Such courts have honored claims to jury trial by defendants in sending the entire proceeding to trial courts.6
The typical state constitution guarantees trial by jury in some civil actions at least, and a few courts have recognized that parties to quo warranto proceedings have such a constitutional right to trial by jury.7 In some other jurisdictions the right to a jury trial exists
under statutes8 or rules of court.9 In a number of other states, however, either as a result of court rule10 or judicial decision11 there is no right of trial by jury in quo warranto proceedings.
By the weight of authority at the common law in America, once the defendant in quo warranto admits he is occupying a public office, he has the burden of proving his right and title to that office.12 This remains true even when the applicant for quo warranto is a private citizen who is not claiming title to the same office.13 However, where the applicant is a private individual claiming title to that office, courts have generally placed upon him the burden of proving his right to the office.14
Comparably, when a defendant is alleged to be exercising a franchise or special privilege, the burden of proving his right to the same is generally upon the defendant.15
§ 4.30 RELIEF
The prime relief available to the applicant who brings quo warranto is the ouster of the defendant from the office, franchise or privilege which he had usurped.l A judgment ousting the defendant from office does not depend upon the plaintiffs right to the office.2 If a court removes a corporate officer, it can at times direct the corporation to make a new appointment to the office.3
In quo warranto, guilty defendants can not only be ousted, but can be prohibited from further practice of the activity.4
Defendants who continue to exercise an office, franchise or privilege after having been ousted, are customarily placed in contempt.5
Statutes generally authorize the imposition of fines upon persons who have usurped offices,6 with even more substantial fines upon corporations and persons who have usurped franchises and privileges.7
A defendant who, in usurping a public office, has received fees and retained them, is often subject to arrest and criminal punishment.8
When corporations are ousted, statutes often provide for courts to appoint for them receivers or trustees.9
Although at the common law a court could not adjudicate the plaintiff/relator's claim or title to the office,10 modern statutes
frequently empower courts in quo warranto to decide the claims of plaintiffs and, indeed, all parties to the contested office.11 If no claimant appears entitled to the office, courts at times have authority to rule the need for elections to fill the office.12 A prevailing plaintiff in quo warranto can customarily secure a court order requiring the defendant to turn over to the plaintiff all book, records and papers held by him.13 Defendants who neglect or refuse to turn over such ordered documents, are customarily guilty of a misdemeanor, punishable by fine and imprisonment.14 Under modern .statutes, a plaintiff prevailing in quo warranto is able to secure damages from the defendant who usurped his office, either in the principal action or in a subsequent action.15 At times when corporations are ousted because of the misconduct of directors or officers, such persons are by statute made liable to actions by individuals injured.16
Typically a prevailing plaintiff in quo warranto is entitled to recover costs from the defendant.17 Comparably, if judgment is for the defendant, he can recover costs from the private applicant for quo warranto.18
Courts in quo warranto proceedings customarily have broad power to make any order which is "an appropriate form of relief."19
§ 4.31 EFFECT
At the common law, quo warranto proceedings did not install the successors in office,1 successful claimants having recourse to other remedies, such as mandamus, to assert their claim to office.2 Quo warranto ouster of the usurper is self-executing, requiring no further process;3 all later acts of the defendant being null and void.4 Where, under many modern statutes, courts in quo warranto can and do adjudicate the rights of plaintiffs and other claimants, judgments in their favor^are also deemed self-executing, requiring no process to place the successful claimant in office.5 At times, under local law, persons ousted may be ineligible for re-election to that office.6 Ousters are not retroactive.7
The effect of a judgment of ouster against a political subdivision in quo warranto proceedings is to immediately dissolve the corporation, whether it existed de jure or de facto, work its dissolution and take away all its rights, liberties, privileges and
franchises. The dissolution of a municipal corporation by the judgment of a court on quo warranto operates an absolute revocation of all power and authority on the part of others to act in its name or behalf.8
When quo warranto decisions are not on the merits, the doctrine of res judicata is inapplicable.9 Where public issues, such as the power of a municipal corporation to effectuate a particular annexation, are litigated in quo warranto they are usually deemed res judicata and binding upon the public generally.10 However, the rights of municipal bondholders with reference to lands within the city when the bonds were issued are not affected by quo warranto ousting these lands from the city," and Florida courts have ruled that, though ousted from lands, cities still have "a de facto jurisdiction" over them sufficient to enable the cities to impose upon the owners taxes for the payment both of municipal bonds and necessary municipal expenses incurred before the ouster.12 Where the sole issue in a quo warranto proceeding is a private one, such as controversy over title to office in a private corporation, the judgment is conclusive only upon the parties and their privies.13
§ 4.32 APPELLATE REVIEW
As in other civil actions, it is possible, under appropriate circumstances, to secure new trials in quo warranto actions.1
In the absence of statute, the efficacy of a judgment of ouster in quo warranto is not suspended by an appeal and the filing of a supersedeas bond.2
Appeals in quo warranto are generally available, as in other civil actions.3 Grant or denial of quo warranto is customarily said to be in the sound discretion of the trial court, and that court's decision is affirmed "unless it plainly appeas that the court abused its discretion,"4 so long as not contrary to the manifest weight of the evidence,5 so long as supported by substantial evidence,6 or so long as the evidence justifies the trial court's findings of fact and conclusions of law.7
Book Four NOTES TO PART TWO
§ 4.14
1 Arizona, Constitution Art. 6, § 5; Colorado, People ex rel. Barton v. Londoner (1889) 13 Colo 303, 22 P 764; Florida, Constitution Art. V, § 5; State ex rel. Smith v. Anderson (1890) 26 Fla 240, 8 So 1; Kansas, Constitution, Art. 3, § 3; State ex
rel. Miller v. Lane Rural High School Dist. (1952) 173 Kan 1, 243 P2d 232; Maine, Rev. Stats. Ann. § 5301; Missouri, Constitution Art. 5, § 4; New Jersey, New Jersey Stats. Ann. 490:4; Pennsylvania, Leedom v. Thomas (1977) 473 Pa 193, 373 A 2d 1329; South Dakota, Burns v. Kurtenbach (SD 1982) 327 NW 2d 636; Utah, State ex rel. Lloyd v. Elliott (1896) 13 Utah 200,44 P 248; Washington, Constitution, Art. IV, § 4; Wyoming, Wyoming Stats. Ann. § 1-31-109.
2 Arizona Const. Art. 6, § 5.
3 Alabama Code § 6-6-590(c); Florida Constitution Art. V, § 11; Buckman v. State (1894) 34 Fla 48, 15 So 697; Hawaii Rev. Stats. § 659-1; Michigan Court Rules 1985, Rule 3.306; Missouri, Vernon's Ann. Mo. Stats. § 531.010; Missouri Court Rule # 98; West Virginia Code § 53-2-4.
4 Arizona Constitution Art. 6, § 18; Georgia Constitution § 2-3305; New Jersey Stats. Ann. § 491:7; Washington Constitution, Art. IV, § 6.
5 Kansas, State ex rel. Miller v. Richardson (1981) 229 Kan 234, 623 P 2d 1317; Wyoming Stats. Ann § 1-31-109.
6 Michigan, Court Rules 1985, Rule 3.306 (exclusive where state officers involved).
7 People ex rel. Barton v. Londoner (1889) 13 Colo 303, 22 P 764, 765.
8 28 U.S.C. § 1651(a).
9 United States ex rel. Wisconsin v. First Federal S. & L. Assn. (7th Cir. 1957) 240 F 2d 804; and cf. Westinghouse Electric Corp. y. Weigel (9th Circ. 1970) 426 F 2d 1356 (recognizing authority of the circuit courts of appeal to issue prohibition).
10 United States ex rel. Wisconsin v. First Federal S. & L. Assn. (7th Cir. 1957) 240 F 2d 804, 809.
11 District of Columbia Code, Title 16, § 1601.
12 Pennsylvania Rules of Civil Procedure, Rule 1112(1); Wichita Falls v. State ex rel. Vogtsberger (Tex Civ App 1974) 509 SW 2d 661.
13 Pennsylvania Rules of Civil Procedure, Rule 1112(1).
14 Alabama Code 1975, § 6-6-590(c); Pennsylvania Rules of Civil Procedure, Rule 1112(2); Virginia Code § 8.01-638 (registered office); Mississippi Code 1972, § 11-39-3.
15 Mississippi Code Ann. 1972, § 11-39-3; Wyoming Stats. Ann. § 1-31-109.
16 Michigan Court Rules 1985, Rule 3.316(d).
§ 4.15
1 Alaska Stats. § 09.50.310; Arkansas Stats. Ann. § 12-731 ("shall have full power to issue writs of quo warranto") Arizona Rev. Stats. § 12-2041; California Code of Civ. Proc. § 804; State ex
rel. Attorney General v. Gleason (1868) 12 Fla 190; Hawaii Rev. Stats. § 659-2; Illinois Rev. Stats, ch 110, par. 18-102; Kansas Rev Stats § 60-1203; Michigan Court Rules 1985, Rule 3.306(b); Kennington-Saenger Theaters v. State (1944) 196 Miss 841, 18 So 2d 483; Nebraska Rev. Stats. § 25-21.122; South Carolina Code § 16-63-60; South Dakota Codified Laws § 21-8-2; Fargnoli v. Cincaci (1979) 121 RI 153, 397 A 2d 68; Fritz v. Thrope (1931) 149 Okl 219, 299 P 884. Iowa Rules of Civil Procedure, Rule 300 (if county attorney fails to bring action). State ex rel. Young v. Kent (1895) 96 Minn 255, 104 NW 948. Wyoming Stats. Ann. § 1-31-103.
2 Arizona Rev. Stats. Ann. § 12-2042; Washington Rev. Code Ann. § 7.56.020; State ex rel. Brown v. Warnock (1942) 12 Wash 2d 478, 122 P 2d 472, 474; State v. Hutchinson (1918) 102 Kan 325, 169 P 1140; Kansas Rev. Stats. § 60-1203; DeKalb v. State (Tex Civ App 1934) 71 SW 2d 299; Illinois Rev. Stats, ch. 110, par. 18-102; Iowa Rules of Civil Procedure, Rule 300 (county attorney generally brings action); Michigan Court Rules 1985, Rule 3.306(b); Nebraska Rev. Stats. § 25-21.122; Wyoming Stats. Ann. § 1-31-104.
3 City of Campbell v. Mosk (1961) 197 Cal App 2d 640, 17 C.R. 584, 587; Lamb v. Webb (1907) 151 Cal 451, 91 P 102; State ex
rel. Landis v. S. H. Kress & Co. (1934) 115 Fla 189, 155 So 823.
4 Turrone, Quo Warranto, 15 Hastings L. Rev. 222, 225 (1963).
5 City of Campbell v. Mosk (1961) 197 Cal App 2d 640, 17 C.R. 584, 587.
6 People ex rel. v. Healy (1907) 230 Ill 280, 82 NE 599; Fuller v. Ellis (1893) 98 Mich 96, 57 NW 33; State ex rel. v. Berry (1878) 3 Minn 190; Bank of Mount Pleasant's Case (1831) 5 Ohio 250; State ex rel. v. Elliott (1896) 13 Utah 200, 44 P 248; Lamoreaux v. Attorney General (1891) 89 Mich 146, 50 NW 812. Marian v. Beard (1932) 259 Mich 183, 242 NW 880; Thomas v. Faller (1928) 166 La 847, 118 So 42; State ex rel. Brown v. Warnock (1942) 12 Wash 2d 478, 122 P 2d 472, 475; State ex rel. Gilbert v. Prosecuting Attorney (1916) 92 Wash 484, 159 P 761; State ex
rel. Evans v. Brotherhood of Friends (1952) 41 Wash 2d 133, 247 P 2d 787.
7 Commonwealth ex rel. Chermer v. Franek (1933) 311 Pa 341, 166 A 878, 879.
8 State ex rel. Town of Stuntz v. Chisholm (1936) 196 Minn 285, 264 NW 798.
9 State ex rel. Johnson v. Lally (1962) 59 Wash 2d 849, 370 P 2d 971.
10 State ex rel. Christiansen v. Johnson (1937) 201 Minn 219, 275 NW 684, 685.
11 Code of Alabama 1975, §6-6-590.
12 City of Oakland v. El Dorado Terminal Co. (1940) 41 Cal App 2d 320, 106 P 2d 1000; City of Oakland v. Hogan (1940) 41 Cal App 2d 333, 106 P 2d 987.
13 State ex rel. City of St. Petersburg v. Noel (1934) 114 Fla 175, 154 So 214; Beverly v. Hattiesburg (1904) 83 Miss 621, 36 So 74; State v. Oehler (1944) 218 Minn 287, 15 NW 2d 783 (city with consent of attorney-general); State v. Brandt (1948) 225 Minn 345, 31 NW 2d 5 (county with consent of attorney-general).
§ 4.16
1 Statute of 9 Anne c. 20(1710).
2 State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 345.
3 Alabama Code 1975, § 6-6-590 ("on the information of any person"); Alaska Stats. § 09.50.310; Arizona Rev. Stats. Ann. § 12-2041; ("upon verified complaint of any person"); California Code of Civil Procedure § ("upon the complaint of a private party"); South Carolina Code § 15-63-60 ("upon the complaint of any private party."); South Dakota Codified Laws § 21-8-2 ("upon the complaint of a private party"); Vernon's Missouri Stats. Ann. § 531.010 ("at the relation of any person desiring to prosecute the same."); North Carolina Gen. Stats. § 1-515 ("upon the complaint of a private party").
4 West Virginia Code § 53-2-2; Missouri Court Rule #98 (applicable to circuit court actions only)("at the relation of any person who has a special interest in the subject matter of the action.")
5 State ex inf. Wallach ex rel. Missouri Optometric Assn. v. Schneider Credit Jewelers (Mo App 1951) 243 SW 2d 125; State ex inf. Otto ex rel. Goldberg v. United Hebrew Congregation (1925) 309 Mo 587, 274 SW 413, 415; But compare: State ex inf. Burgess ex rel. Marbut v. Potter (Mo 1916) 191 SW 57 (taxpayer with child in school had sufficient interest to be relator to question validity of organization of school district).
6 State ex inf. Graham v. Hurley (Mo 1976) 540 SW 2d 20, 23.
7 State ex rel. Freeman v. Ponder (1951) 234 NC 294, 67 SE 2d 292.
8 State ex inf. Peach ex rel. Stetz v. Perry (Mo App 1982) 643 SW 2d 878, 880; Vrooman v. Michie (1888) 69 Mich 42, 36 NW 749.
9 Burkett ex rel. Leach v. Ulmer (1940) 137 Me 120, 15 A 2d 858, 859.
10 State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342 But cf. State ex inf. McKittrick ex rel. Handlan v. Wilkie Land Co. (1942) 349 Mo 666, 162 SW 2d 846, noted in 8 Mo. L. Rev. 261 (1943).
11 Florida Stats. Ann. § 80.02. State ex rel. Black v. Taylor (1907) 208 Mo 442, 106 SW 1023.
12 State ex rel. Black v. Taylor (1907) 208 Mo 442, 106 SW 1023.
§ 4.17
1 "By the common law the matter of instituting proceedings of this nature was a prerogative of the Attorney General." Baxter v. State ex rel. Metcalf (1942) 243 Ala 120, 9 So 2d 119, 120; "At the common law the public prosecutor or attorney general had the exclusive right or power to commence proceedings by information in the nature of quo warranto." State ex rel. Brown v. Warnock (1942) 12 Wash 2d 478, 122 P 2d 472, 474; "At common law, private individuals without the intervention of the attorney general could not, either as of right or by leave of court, institute quo warranto proceedings."; Burkett ex rel. Leach v. Ulmer (1940) 137 Me 120, 15 A 2d 858, 859; Rice v. National Bank (1879) 126 Mass 300; Brierly v. Walsh (1938) 299 Mass 292, 12 NE 2d 827; Cleaver v. Roberts (1964) 57 Del 538, 203 A 2d 63, 66; St. Joseph and Grand Island Ry. v. School Dist. (1923) 114 Kan 67, 217 P 296; Fritz v. Thorpe (1931) 149 Okl 219, 299 P 884; State ex rel. Wurn v. Kasserman (1938) 131 Fla 234, 179 So 410. "Such an interest (as citizen and taxpayer) under the almost uniform holding of the courts is entirely
insufficient to sustain an action in the nature of quo warranto." State ex rel. Murdock v. Ryan (1912) 41 Utah 327, 125 P 666, 669. Without statutory authority private parties cannot bring quo warranto in the federal courts. United States v. Machado (ND Cal. 1969) 306 F Supp 995; Blackburn v. O'Brien 289 F Supp 289.
2 Statute of 9 Anne c. 20 (1710).
3 State ex rel. Young v. Kent (1905) 96 Minn 255, 104 NW 948, 951; and cf. State ex rel. Hess v. Boehringer (1914) 16 Ariz 48, 141 P 126.
4 State ex rel. Wurn v. Kasserman (1938) 131 Fla 234, 179 So 410, 412; State ex rel. Wetzel v. Tracy (1892) 48 Minn 497, 51 NW 613; Evans v. Anderson (1916) 132 Minn 59, 155 NW 1040.
5 Demarest v. Wickham (1875) 63 NY 320, 324; Babcock v. Kansas City (1966) 197 Kan 610,419 P 2d 882 (annexation); Red River Valley Brick Co. v. Grand Forks (1914) 27 ND 8, 145 NW 725 (same).
6 "The right to exercise a municipal franchise cannot be challenged by the individual citizen." State ex rel. Johnson v. City of Sarasota (1926) 92 Fla 563, 109 SO 473; State ex rel. Harris v. King (1938) 134 Fla 58, 183 So 926.
7 Jenkins v. Congleston (1932) 242 Ky 46, 45 SW 2d 456; The "public interest demands that a public officer shall not be called upon to defend his office against private attack." Marina v. Beard (1932) 259 Mich 183, 186, 242 NW 880; State ex rel. Powe v. Pittman (1965) 253 Miss 844, 179 So 2d 563; State ex rel. Morrison v. Freeland (W Va 1954) 81 SE 2d 685, 688; State ex
rel. Murdock v. Ryan (1912) 41 Utah 327, 125 P 666, 668 ("unless there be a statute expressly permitting the claimant of a public office to bring the action, it must be brought by some state official on the relation of the claimant to the office."); State ex rel. Sawyer v. La Sota (1978) 119 Ariz 253, 580 P 2d 714; State ex rel. Pickett v. Cairns (1924) 305 Mo 333, 265 SW 527.
8 Kennington-Saenger Theaters v. State (1944) 196 Miss 841, 18 So 2d 483.
§ 4.18
1 Alabama Code § 6-6-590. Any person is permitted to sue to annul a corporate charter. State ex rel. Scott v. United States Endowment & Trust Co. (1904) 140 Ala 610, 37 So 442.
2 Birmingham Bar Association v. Phillips & Marsh (1940) 239 Ala 650, 196 So 725, 732.
3 Alabama Code § 6-6-591.
4 Baxter v. State ex rel. Metcalf (1942) 243 Ala 120, 9 So 2d 119.
An individual suing under the Alabama statute is required to post security for costs. Taylor v. State (1858) 31 Ala 383.
5 Georgia Code Ann. § 64-201.
6 Malone v. Minchew (1930) 170 Ga 687, 153 SE 773, 775.
7 Rogers v. Croft (1948) 203 Ga 654, 47 SE 2d 739.
8 Whitehurst v. Jones (1903) 117 Ga 803, 45 SE 49, 50.
9 Clark v. Long (1922) 152 Ga 619, 111 SE 31,31; Semble: Kidd v. Nelson (1957) 213 Ga 417, 99 SE 2d 123.
10 Hawaii Rev. Stats. § 659.4.
11 In re Sherwood (1914) 22 Hawaii 385.
12 In Matter of Sherretz (1952) 39 Hawaii 431.
13 Idem.
14 Massachusetts Genl. Laws ch. 249, § 6.
15 Gardner Trust Co. v. Whitehall Corp. (1927) 260 Mass 239, 241, 157 NE 519.
16 New Jersey Stats. Ann. § 2A;66-6.
17 Decker v. Daudt (1907) 74 NJL 790, 67 A 375.
18 Goff v. Hunt (1951) 6 NJ 600, 80 A 2d 104, 106.
19 Demoura v. Newark (1962) 74 NJ Super 49, 180 A 2d 513, 518.
20 North Dakota Century Code § 32-13-03. Walker v. Wielenman (ND 1966) 143 NW 2d 689.
21 Red River Valley Brick Co. v. Grand Forks (1914) 27 ND 8, 145 NW 725.
22 12 Pa. Stats. § 2022.
23 Commonwealth ex rel. McLaughlin v. Cluley (1867) 56 Pa 270, 272; Commonwealth ex rel. Schermer v. Franek (1933) 311 Pa 341, 166 A 878; Commonwealth ex rel. Gast v. Pfromm (1917) 255 Pa 485, 100 A 276, 277-8.
24 Dorris v. Lloyd (1953) 375 Pa 481, 100 A 2d 599; followed in Lehman v. Tucker (1977) 470 Pa 362, 368 A 2d 670.
25 Lehman v. Tucker (1977) 470 Pa 362, 368 A 2d 670 (incumbent county sheriff, defeated in last election, held to have standing where, if he won, he would be back in office under Pennsylvania law that incumbent can remain in office until the office is lawfully filled).
26 Commonwealth ex rel. Scherman v. Franek (1933) 311 Pa 341, 166 A 878, 879.
27 Gwinn v. Kane (1975) 19 Pa Cmwlth 243, 339 A 2d 838 (defendant in criminal prosecution can bring quo warranto to test title of prosecutor); StroupV Kapleau (1973) 455 Pa 171, 313 A 2d 237 (state senators, having by law right to approve or disapprove gubernatorial nominees, could bring to challenge the right to office of temporary appointees).
28 Spykerman v. Levy (1980) 491 Pa 470, 421 A 2d 641, 649.
29 Code of Virginia § 8.01-637.
30 Commonwealth v. Rouse (1935) 163 Va 841, 178 SE 37, 40.
31 Hammer v. Commonwealth (1937) 169 Va 355, 193 SE 496.
§ 4.19
1 Arizona Rev. Stats. Ann. § 12-2043; Illinois Rev. Stats, ch. 110, par. 18-102; Iowa Rules of Civil Procedure, Rule 300; Michigan Stats. Ann. 27A.4501; Minnesota Rules of Civil Procedure, Rule 81; Minnesota Stats. Ann. 480.04; Williams v. Rolfe (1960) 257 Minn 237, 101 NW 2d 923; New Jersey Rule 3:81-2; Tonkin v. Kenworthy (1934) 112 N.J.L. 274, 170 A 233; South Carolina Code § 15-63-60; South Dakota Codified Laws § 21-28-4; West Virginia Code § 53-2-4; Virginia Code § 8.01-637. An occasional state holds that the Statute of Anne (9 Anne c.20, 1710) is part of its common law and contrues that statute to mean "that a private citizen might file application with the court seeking authority to bring an action of quo warranto in the name of the State." State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 345.
2 E.g., South Carolina Code § 15-63-60.
3 People ex rel. Durst v. Germantown Hills (1977) 51 Ill App 3d 969, 367 NE 2d 426, 428.
4 Knockenmuss v. De Kerchove (1939) 66 SD 446, 285 NW 441, 442; Zimmerman v. Bohr (1948) 72 SD 78, 30 NW 2d 4; Commonwealth v. Rouse (1935) 163 Va 841, 178 SE 37, 40; State ex rel. Depue v. Mathews (1898) 44 W Va 372, 29 SE 994 (defeated candidate's interest not sufficient); State ex rel. Scanes v. Babb (1942) 124 W Va 428, 20 SE 2d 683 (interest of de facto officer not sufficient); State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855.
5 Marian v. Beard (1932) 259 Mich 183, 242 NW 880; Hammer v. Commonwealth (1937) 169 Va 355, 193 SE 496.
6 "A plaintiff must show that he has a special interest: namely a right to the office." Smith v. Reid (1932) 60 SD 311, 244 NW 353.
7 Goff v. Hunt (1951) 6 N.J. 600, 80 A 2d 104; Tonkin v. Kenworthy (1934) 112 NJL 274, 170 A 233; State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855 (private individual with interest different from general public can attack annexation); State ex rel. Wells v. Atwood (1938) 202 Minn 50, 277 NW 357; State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342.
8 State ex rel. White v. Barker (1902) 116 Iowa 96, 162 NW 513.
9 Goff v. Hunt (1951) 6 NJ 600, 80 A 2d 104.
10 Himes v. Sumner (1922) 45 SD 93, 186 NW 116. With leave of court, a relator could question the validity of the organization of his school district, when he was a taxpayer and a father of a child in school. State ex inf. Burgess ex rel. Marbut v. Potter (Mo 1916) 191 SW 57.
11 State ex rel. Town of Stuntz v. City of Chisholm (1936) 196 Minn 285, 264 NW 798.
12 State ex rel. Morrison v. Freeland (1954) 139 W Va 327, 81 SE 2d 685, overruled on other grounds, Marra v. Zink (W Va 1979) 256 SE 2d 581, andnoted in 57 W Va L Rev 120 (1955).
13 Commonwealth v. Bowditch (1907) 217 Pa 527, 66 A 867, 869.
14 State ex rel. Gall y. Barnes (1917) 136 Minn 438, 162 NW 513.
15 People ex rel. Universal Oil Products v. Village of Lyons (1948) 400 Ill 82, 74 NE 2.d 33, 37; Martin v. Beard (1932) 259 Mich 183, 242 NW 880; Boucha v. Alger Circuit Judge (1910) 159 Mich 610, 124 NW 532; State ex rel. Lloyd v. Elliott (1896) 13 Utah 200, 44 P 248; Dorsey v. Ansley (1884) 72 Ga 460.
16 State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855.
17 South Dakota Codified Laws § 21-28-4; Virginia Code § 8.01-637; West Virginia Code § 53-2-4.
§ 4.20
1 Georgia Code Ann. § 64-201: "The writ of quo warranto may issue to inquire into the right of any person to any public office the duties of which he is in fact discharging, but must be granted at the suit of some person either claiming the office or interested therein."; Mississippi Code Annotated 1972, § 11-39-3; "A private person is permitted to bring a petition, or information in quo warranto, to try the right to an office in the name of the State of Mississippi." State ex rel. Muirhead v. State Board of Election Comrs. (Miss. 1972) 259 So 2d 698, 700; Utah Rules of Civil Procedure, Rule 65B(d): "A person claiming to be entitled to a public or private office unlawfully held and exercised by another may bring an action therefor."; Washington Rev. Code Ann. § 7.56.020: "by any other person on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information."; Wyoming Stats. Ann. § 1-31-105 "A person claiming to be entitled to a public office unlawfully held by another may bring an action therefor upon giving security for costs"; New Jersey Stats. Ann. § 2A: 66-8 (procedure in lieu of traditional quo warranto can be brought by any person believing himself entitled to any municipal office); Walton v. Brindle (1931) 9 NJ Misc 490, 180 A 2d 513.
2 Utah Rules of Civil Procedure, Rule 65B(d). VanCott v. Turner (1936) 88 Utah 535, 56 P2d 16.
3 Washington Rev. Code Ann. § 7.56.020; Kansas Rev. Stats. § 60-1203 "a person claiming an interest in an office, franchise or corporation, or claiming an interest adverse to a resolution, ordinance, franchise, gift or grant...."
4 Olsen v. Merrill (1931) 78 Utah 453, 5 P 2d 226; State ex rel. Muirhead v. State Board of Election Comrs. (Miss. 1972) 259 So 2d 698; State v. Shawver (1924) 30 Wyo 366, 222 P 11.
5 Demoura v. Newark (1962) 74 NJ Super 49, 180 A 2d 513, 518; and cf. State v. Washburn (1947) 224 Minn 269, 28 NW 2d 652.
6 Dore v. Superior Court (1932) 167 Wash 655, 9 P 2d 1087; State ex rel. Brown v. Warnock (1942) 12 Wash 2d 478, 122 P 2d 472; State ex rel. Clausen v. Hartley (1927) 144 Wash 135, 257 P 396. Note Mills v. Washington (1891) 2 Wash 566, 27 P 560 (mayor could not contest right of another to office of councilman, since not a claimant to that office).
7 Mills v. State ex rel. Smith (1891) 2 Wash 566, 27 P 560, 563; "A mere citizen, a voter or a taxpayer has no right to maintain such an action." Dore v. Superior Court (1932) 167 Wash 655, 9 P 2d 1087, 1088; Note State ex rel. Mitchell v. Koran (1900) 22 Wash 197, 60 P 135 (stockholder held to have adequate interest to bring quo warranto to oust corporate officer); A private person bringing quo warranto "shall show his interest in the matter." Washington Rev. Code Ann. § 7.56.040; A business competitor held not to have adequate interest to oust another corporation for non-user. State ex rel. White v. Point Roberts Reef Fishing Co. (1906) 48 Wash 196, 95 P 219.
8 Di Mona v. Mariano (1939) N.J.L. 75, 8 A 2d 97.
9 Marian v. Beard (1932) 259 Mich 183, 242 NW 880; Hammer v. Commonwealth (1937) 169 Va 355, 193 SE 496; State v. Washburn (1947) 224 Minn 269, 28 NW 2d 652; State ex rel. Brogan v. Boehner (1963) 174 Neb 689,119 NW 2d 147; Smith v. Reid (1922) 60 SD 311, 284 NW 353.
10 Blanchard v. Norman (1927) 164 La 433, 114 So 87, 88 (dictum).
11 Haack v. Ranieri (1964) 83 NJ Super 526, 200 A 2d 522.
12 State v. Reiner (1931) 9 NJ Misc 950, 156 A 120 (almost three years).
§4.21
1 Alaska Stats. § 09.50.310, construed to authorize private party when attorney general has refused. People ex rel. Bowman v. Alaska Airlines (D Alaska 1952) 108 F Supp 274, revd. on other grounds (9th Cir. 1953) 206 F 2d 203; Colorado Rule 106: "if the
district attorney declines to do so, it may be brought upon the relation and complaint of any person." It is no longer necessary to seek leave of court. The rule applies "when any person usurps, intrudes into or unlawfully holds or exercise any office or franchise."; Illinois Rev. Stats, ch. 110, par. 18-102 ("by any citizen on his or her own relation, when he or she has requested the Attorney General and State's Attorney who have refused to do so and when after notice to the Attorney General and State's Attorney, and to the adverse party, of the intended application, leave has been granted by the circuit court."; Nebraska Rev. Stats. § 25-21.122 ("any elector" may bring to oust persons unlawfully occupying public office, if county attorney refuses to bring action); Under earlier statutes it was held that a citizen claiming the office could bring quo warranto on his own relation without seeking consent of prosecuting attorney. State ex rel. Brogan v. Boehner (1963) 174 Neb 689,119 NW 2d 147; Florida Stats. Ann. § 80.01: "Any person claiming title to an office which is exercised by another shall have the right, upon refusal by the Attorney General, to institute proceedings in the name of the State upon such claimant's relation, or upon the Attorney General's refusal to file a complaint setting forth his name as the person rightfully entitled to the office, to file an information or institute an action in the name of the State against the person exercising the office, setting up his own claim...."; Utah Rules of Civil Procedure, Rule 65B(d) "A private person may bring an action...if the Attorney General fails to do so after notice." Under the Utah Rules a private person can bring quo warranto whenever someone is usurping an office or a franchise, whenever an officer has done an act forfeiting office, whenever individuals are acting as a corporation without lawful authority, and when corporations have forfeited their privileges. Rules 65B(b) (1) and 65B(d); Wisconsin Stats. Ann. § 784.04(2) "Such action may be brought in the name of the State by a private person on personal complaint when the Attorney General refuses to act...."
2 State ex rel. Gentles v. Barnholt (1961) 145 Colo 259, 358 P 2d 466; People ex rel. Byers v. Grand River Bridge Co. (1889) 13 Colo 11, 21 P898.
3 State ex rel. First National Bank v. M & I Peoples Bank (1980) 95 Wis 2d 303, 290 NW 2d 321, 327-8, adding: "A private person seeking to act as relator is still required to possess a personal or peculiar interest in the subject matter which is distinguished from that of the general public."
4 Rowan v. Shawneetown (1941) 378 Ill 289, 38 NE 2d 2.
5 People ex rel. McCarthy v. Firek (1955) 5 Ill 2d 317, 125 NE 2d 637.
6 People ex rel. Durst v. Village of Germantown Hills (1977) 51 Ill App 3d 969, 367 NE 2d 426, 428. Where a private interest is at stake, quo warranto can be brought. People v. Freeport (1980) 90 Ill App 3d 112, 412 NE 2d 718.
7 State ex rel. Watkins v. Fernandez (1932) 106 Fla 779, 143 So 638.
8 People ex rel. Mijares v. Kriss (1960) 144 Colo 551, 357 P 2d 352.
9 Burns v. District Court (1960) 144 Colo 259, 356 P 2d 245.
10 State ex rel. Gentles v. Barnholt (1961) 145 Colo 259, 358 P 2d 466.
11 Canon City Labor Club v. People ex rel. Jamieson (1912) 21 Colo App 37, 121 P 120.
12 State ex rel. Williams v. Samuelson (1907) 131 Wis 499,111 NW 712, 713; Henning v. Village of Waterford (1977) 78 Wis 2d 181, 233 NW 2d 895.
13 State ex rel. Martin v. Ekern (1938) 228 Wis 645, 280 NW 393, noted in 1939 Wis L Rev 150.
14 People ex rel. Cory v. Colorado High School Activities Assn. (1960) 141 Colo 382, 349 P 2d 381.
15 People ex rel. Cory v. Colorado High School Activities Assn. (1960) 141 Colo 382, 349 P 2d 381.
16 State ex rel. First National Bank v. M. & I. Peoples Bank (1980) 95 Wis 2d 303, 290 NW 2d 321.
17 Alaska Stats. § 09.50.320; Nebraska Rev. Stats. § 25.21.122.
§4.22
1 California Administrative Code, Title 11, ch. 1.
2 Turrone, Quo Warranto, 15 Hastings L. Rev. 222, 225 (1963).
3 North Carolina Genl. Stats. § 1-516.
4 State ex rel. Freeman v. Ponder (1951) 234 NC 294, 67 SE 2d 292 (sheriff); Swaringen v. Poplin (1937) 211 NC 700, 191 SE 746. (county commissioner).
§ 4.23
1 New Jersey Stats. Ann. § 2A:66-8. To the effect that claimants to office can bring. Demoura v. Newark (1962) 74 NJ Super 49, 180 A 2d 513, 518.
2 Wisconsin Stats. Ann. § 784.04(2). State ex rel. Williams v. Samuelson (1907) 131 Wis 499, 111 NW 712 (private party could bring on own when county office at issue).
3 Comment, Quo Warranto in Relation to Public Office, 1959 Wis L Rev 150, 152.
§ 4.24
1 State ex rel. Law v. Saxon (1889) 25 Fla 342, 5 So 801; Hawaii Rev. Stats. § 659-9; Kansas Rev. Stats. § 60-1201; State v. York Light & Heat Co. (1915) 113 Me 144, 93 A 61; State ex rel. City of St. Paul v. Oehler (1944) 218 Minn 287, 15 NW 2d 783; State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855; State ex inf. Barrett ex rel. Ryan v. Huffman (Mo App 1923) 248 SW 985; North Dakota Century Code § 32-13-02; South Dakota Codified Laws § 21-28-3.
2 State v. Dover (1941) 113 Minn 452, 130 NW 539; Cleaver v. Roberts (1964) 57 Del 538, 203 A 2d 63.
3 Harris v. Pounds (1880) 66 Ga 123, 125-6; Cleaver v. Roberts (1964) 57 Del 538, 203 A 2d 63.
4 Town of Coreytown v. State ex rel. Ervin (Fla 1952) 60 So 2d 482; State v. York Light & Heat Co. (1915) 113 Me 144, 93 A 61; Burkett ex rel. Leach v. Ulmer (1940) 137 Me 120, 15 A 2d 858; State ex rel. Wilson v. Pearson (1955) 242 NC 601, 89 SE 2d 150; Rosenbrock v. School Dist. (1955) 344 Mich 335, 74 NW 2d 32; People ex rel. Moran v. Teolis (1960) 20 Ill 2d 95, 169 NE 2d 232.
5 State ex rel. Town of Stuntz v. City of Chisholm (1936) 196 Minn 285, 264 NW 798; People ex rel. Bledsoe v. Campbell (1902) 138 Cal 11, 70 P 918 (another claimant to the office); People ex rel. White v. Barker (1902) 116 Iowa 96, 89 NW 204 (same); People ex rel. Fogg v. Perris Irrigation Dist. (1901) 132 Cal 289, 64 P 399; People ex rel. Clark v. Milk Producers Assn. (1922) 60 Cal App 439, 212 P 957.
6 California Code of Civil Procedure § 808; North Carolina Gen. Stats. § 1-520; South Carolina Code § 15-63-80; South Dakota Codified Laws § 21-28-5; New York Executive Law § 63-b; Wisconsin Stats Ann. § 784.12; Florida Stats. Ann. § 80.03; Illinois Rev. Stats, ch. 110, par. 18-103.
§ 4.25
1 State ex rel. Black v. Taylor (1907) 208 Mo 442, 106 SW 1023; State ex rel. Depue v. Mathews (1898) 44 W Va 372, 29 SE 994; Commonwealth v. Bowditch (1907) 217 Pa 527, 66 A 867; State ex rel. Lloyd v. Elliott (1896) 13 Utah 200, 44 P 248; Marian v. Beard (1932) 259 Mich 183, 242 NW 880.
2 The modern statutes are indicated in § 4.19.
3 Marian v. Beard 91932) 259 Mich 183, 186, 242 NW 880; People v. Emerson (1925) 313 Ill 209, 145 NE 106; People ex rel. Durst v. Village of Germantown Hills (1977) 51 Ill App 3d 969, 367 NE 2d 426.
4 Boucha v. Alger Circuit Judge (1910) 159 Mich 610, 124 NW 532.
5 People v. Emerson (1925) 313 Ill 209, 145 NE 106.
6 State ex rel. Union Elec. Lt. & Power Co. v. Grimm (1909) 220 Mo 483, 119SW626.
7 State ex rel. Town of Stuntz v. City of Chisholm (1936) 196 Minn 285, 264 NW 798; State ex rel. St. Paul v. Oehler (1944) 218 Minn 287, 15 NW 2d 783.
8 Ferzacca v. Freeman (1927) 240 Mich 682 216 NW 469; Watkins v. Venable (1901) 99 Va 440, 39 SE 147; People v. Golden Rule (1885) 114 Ill 34, 28 NE 383; Gilroy v. Commonwealth (1884) 105 Pa 484.
9 Wyoming Stats. Ann. § l-31-104(b); Virginia Code § 8.01-639; North Carolina Gen. Stats. § 1-526; Mississippi Stats Ann. § 11-39-13.
10 Iowa Rules of Civil Procedure, Rule 300; New Jersey Stats. Ann. § 2A:66-9; South Dakota Codified Laws § 21-28-4; Virginia Code § 8.01-637; West Virginia Code § 53-2-4.
11 State ex rel. Lloyd v. Elliott (1896) 13 Utah 200, 44 P 248. "The granting or withholding of leave to file an information for a writ of quo warranto at the instance of a private individual...rests in the sound discretion of the court." State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855; People ex rel. Universal Poil Products v. Village of Lyons (1948) 400 Ill 82, 74 NE 2d 33, 37; Marian v. Beard (1932) 259 Mich 183, 242 NW 880; Schallau v. City of Northlake (1979) 82 Ill App 3d 456, 403 NE 2d 266.
12 People ex rel. Universal Oil Products v. Village of Lyons (1948) 400 Ill 82, 74 NE 2d 33, 37.
13 Ferzacca v. Freeman (1927) 240 Mich 682, 216 NW 469; State v. Railway Company (1906) 135 Iowa 694, 109 NW 867.
§ 4.26
1 Code of Alabama, 1975, § 6-6-592. California Code of Civil Procedure § 804; Connecticut Genl. Stats. Ann. § 52-491; Florida Stats. Ann. § 80.01; Illinois Rev. Stats, ch. 110, par. 18-103: "The first pleading by the plaintiff shall be designated a complaint"; Pennsylvania Rules of Civil Procedure, Rule 1113; People v. McClellan (1907) 119 App Div 416, 104 NYS 447 (complaint now serves purpose of former information); New Jersey Stats. Ann. § 2A:66-9; State v. Tollison (1913) 95 SC 58, 78SE521.
2 Hawaii Rev. Stats. § 659-4; Louisiana Code of Civil Procedure, Art. 3781; Wyoming Stats. Ann. § 1-31-110.
3 State by inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 345 "The proceeding in this State is instituted by the filing of an information in the nature of quo warranto." In effect, this is the complaint; Attorney General v. Loomis (1917) 225 Mass 372, 114 NE 676; Nebraska Rev. Stats. § 25-21.124: "The information shall consist of a plain statement of the facts which constitute grounds of the proceeding, addressed to the court, which shall stand for an original petition."
4 "The rule seems to be settled that, in proceedings of this character prosecuted by the state, it is sufficient to plead in general terms the ultimate fact of unsurpation." People ex rel. Stephenson v. Hayden (1935) 9 Cal App 2d 312,49 P 2d 314, 315 (adding: "the rule of pleading has been often criticized.") (Action was to determine the right of the defendant to serve as supervisor of a municipal corporation); State ex rel. Johnson v. City of Sarasota (1926) 92 Fla 563, 109 So 473; State ex rel. Davis v. City of Stuart (1929) 97 Fla 69, 120 So 335; State ex rel. Landis v. S. H. Kress & Co. (1934) 115 Fla 189, 155 So 823.
5 "The plaintiff in quo warranto is not required to allege or set out any facts showing that the challenged act is unlawful. It is enough to allege an exercise of the right without lawful authority." People ex rel. Henderson v. Redfern (1966) 75 Ill App 2d 196, 220 NE 2d 323, 326; Illinois Rev. Stats, ch. 110, par. 18-103: "The complaint need not set forth the basis of the challenge, but may in general terms allege the defendant is exercising the claimed right without lawful authority and call upon the defendant to show by what warrant he, she or it exercises it...."; Iowa Rules of Civil Procedure, Rule 302: "The petition shall state the ground on which the action is brought...."
6 Code of Alabama 1975, § 6-6-592: "The complaint...must concisely and clearly set forth the act or omission complained of."; Hawaii Rev. Stats. § 659-4: "Setting out facts sufficient to show a right to the order."
7 State by info. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 346; L. & N. Railway v. State ex rel. Gray (1907) 154 Ala 156, 45 So 296.
8 State ex rel. Chambers v. Bates (1936) 233 Ala 251, 171 So 370; People ex rel. Attorney General v. San Francisco Public Stock Exchange (1893) 4 Cal Unrep 85, 33 P 785.
9 Young v. State ex rel. Russell (1951) 256 Ala 84, 53 So 2d 350.
10 Baker v. State ex rel. Green (1931) 222 Ala 467, 133 So 291; State by info. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 345.
11 Washington Rev. Code Ann. § 7.56.040; People ex rel. Durst v.
Village of Farmington Hills (1977) 51 Ill App 3d 969, 367 NE 2d 426, 428.
12 State ex rel. Clark v. Klingensmith (1935) 121 Fla 297, 163 So 704; Dore v. Superior Court (1932) 167 Wash 655, 9 P 2d 1087; Vrooman v. Michie (1888) 69 Mich 42, 36 NW 749.
13 New Jersey Stats. Ann. § 2A:66-9 (executes bond to defendant in amount of $200.)
14 Code of Alabama 1975, § 6-6-595.
15 Hicks v. Liner (1949) 205 Ga 232, 52 SE 2d 846; Canairo v. Serrao (1897) 11 Hawaii 22; Hawaii Rev. Stats. § 659-4 "if the application is made by a private individual." Under Code of Alabama 1975, § 6-6-592 it is not necessary that an information or complaint be sworn to. Jackson v. State ex rel. Tilman (1905) 143 Ala 145, 42 So 61.
16 Illinois Rev. Stats., ch. 110, par. 18-106; Wyoming Stats. Ann. § 1-31-110; Washington Rev. Code Ann. § 7.56.050; Connecticut Genl. Stats. Ann. § 52-494; Georgia Code Ann. § 64-202.1.
§ 4.27
1 State ex rei inf. Pulley ex rei Harrington v. Scott (1925) 307 Mo 250, 270 SW 382; Burnson v. Evans (1948) 137 NJL 511, 60 A 2d 891.
2 State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855; State ex rel. Town of Stuntz v. City of Chisholm (1936) 196 Minn 285, 264 NW 798; State v. Leischer (1903) 117 Wis 475, 94 NW 299.
3 Wyoming Stats. Ann. § 1-31-108; Florida Stats. Ann. § 80.03; Alabama Code 1975, § 6-6-597 (the person rightly entitled to office can be named as a defendant).
4 L. & N. Railway v. State ex rel. Bray (1907) 154 Ala 156, 45 So 296; State ex rel. White v. Town of Addison (1955) 262 Ala 139, 77 So 2d 663; Palmer v. Woodbury (1859) 14 Cal 43; People ex
rel. Martin v. Worswick (1904) 142 Cal 71, 75 P 663; State ex rel. Wurn v. Kasserman (1938) 131 Fla 234, 179 So 410; State ex rel. Spafford v. Kennedy (1890) 26 Fla 608, 8 So 310; State v York Light and Heat Co. (1915) 113 Me 144, 93 A 61; Territory v. Lockwood (1866) 3 Wall. 236, 18 L Ed 47; State v. Kennedy (1893) 69 Conn 220, 37 A 503; Mississippi Code Ann. § 11-39-11; State v. Consumers Public Power Dist. (1942) 142 Neb 114, 5 NW 2d 202; Virginia Code § 8.01-642; Washington Rev. Code Ann. § 7.56.050; State ex rel. Port Angeles v. Morse (1910) 56 Wash 654, 106 P 147; People v. McClellan (1907) 119 App Div 416, 104 NYS 447.
5 Attorney General ex rel. Wilkins v. Connors (1891) 27 Fla 329, 9 So 7; State ex inf. McKittrick v. Murphy (Mo 1941) 148 SW 2d 527; Tonkin v. Kenworthy (1934) 112 N.J.L. 274, 170 A 233.
6 State ex rel. Morrison v. Freeland (1954) 139 W Va 327, 81 SE 2d 685.
7 State ex rel. Kinney v. St. John (1937) 233 Ala 480, 172 So 639; Boucha v. Alger Circuit Judge (1910) 159 Mich 610, 124 NW 532; Wisconsin Stats. Ann. § 784.07.
8 State ex rel. Port Angeles v. Morse (1910) 56 Wash 654, 106 P 147; Attorney General ex rel. Wilkins v. Connors (1891) 27 Fla 329, 9 So 7; City of Winter Haven v. State ex rel. Landis (1936) 125 Fla 392, 170 So 100; State ex rel. Wurn v. Kasserman (1938) 131 Fla 234, 179 So 410.
9 People ex rel. City of Burbank v. City of Chicago (1973) 16 Ill App 3d 184, 305 NE2d 656.
10 Attorney General ex rel. Wilkins v. Connors (1891) 27 Fla 329, 9 So 7.
11 Missouri Court Rule 98.06; State ex rel. Danielson v. Village of Mound (1951) 234 Minn 531, 48 NW 2d 855; State ex rel. St. Paul v. Oehler (1944) 218 Minn 287, 15 NW 2d 783. However, only demurrer or answer is available in Nebraska. State v. Consumers Public Power Dist. (1942) 142 Neb 114, 5 NW 2d 202.
12 Marian v. Beard (1932) 259 Mich 183, 186, 242 NW 880.
13 Hawaii Rev. Stats.§659-5; Illinois Rev. Stats., ch. 110, par. 18-103; Louisiana Code of Civil Procedure, Art. 3783; State v. Tollision (1913) 95 SC 58, 78 SE 521; Attorney General v. Loomis (1917) 225 Mass 372, 114 NE 676; New Jersey Stats. Ann. § 2A:66-10; Missouri Court Rule 98.06; State v. Consumers Power Dist. (1942) 142 Neb 114, 5 NW 2d 202; Neb. Rev. Stats. § 25-21.126; Virginia Code § 8.01-642.
14 State ex rel. Johnson v. City of Sarasota (1926) 92 Fla 563, 109 SC 473, 479 "The respondent's plea or answer must contain allegations of all such facts as are necessary to show authority for the use of the franchise."; State ex rel. Law v. Saxon (1889) 25 Fla 342, 5 So 801; State ex rel. Landis v. S.H. Kress & Co. (1934) 115 Fla 189, 155 So 823; State ex rel. Attorney General v. Gleason (1868) 12 Fla 190; Territory v. Morita (1935) 41 Hawaii 1; Hawaii Rev. Stats. § 659-5; State ex inf. Hadley v. Standard Oil Co. (1909) 218 Mo 1, 116 SW 902, affd. 224 US 270 People ex rel. Judson v. Thacher (1887) 55 NY 525. Where a complaint was insufficient in law, an answer was struck, demurrer being proper. Hill v. State (1930) 157 Miss 648, 128 So 878.
15 State ex rel. Landis v. S.H. Kress & Co. (1934) 115 Fla 189, 155 So 823.
16 People v. Lowden (1895) 2 Cal Unrep 537, 8 Pac 66; State ex rel. Attorney General v. Gleason (1868) 12 Fla 190.
17 State ex inf. Holt ex rel. Jones v. Meyer (1928) 321 Mo 858, 12 SW 2d 489; Attorney General v. Loomis (1917) 225 Mass 372, 114NE676.
18 People ex rel. Bledsoe v. Campbell (1902) 138 Cal 11, 70 P 918, 921.
19 New Jersey Stats. Ann. § 2A:66-11; Whitehurst v. Jones (1903) 117 Ga 803, 45 SE 49.
20 Iowa Rules of Civil Procedure, Rule 301; Illinois Rev. Stats, ch. 110, par. 18-103.
21 People ex rel. Fogg v. Perris Irrigation Dist. (1901) 132 Cal 289, 64 P 399; People ex rel. Bledsoe v. Campbell (1902) 138 Cal 11, 70 P 918; People ex rel. White v. Barker (1902) 116 Iowa 96, 89 NW 204.
§ 4.28
1 Kansas Genl. Stats. § 60-1614; State ex rel. Ralston v. Showalter (1962) 189 Kan 562, 370 P 2d 408.
2 State ex rel. Sherrill v. Payne (1932) 224 Ala 223, 139 So 99; State ex rel. Chambers v. Bates (1936) 233 Ala 251, 171 So 370; State ex rel. Davis v. City of Stuart (1929) 108 Fla 640, 144 So 306; Illinois Rev. Stats, ch. 110, § 18-103.
3 Brooks v. State (1911) 3 Bryce (Del.) 1, 79 A 790; People v. Central Union Telephone Co. (1908) 232 Ill 260, 83 NE 829.
4 People ex rel. Wiley v. Baker (1922) 219 Mich 629, 190 NW 273.
5 State ex rel. Johnson v. City of Sarasota (1926) 92 Fla 563, 109 So. 473.
6 State on inf. Shartel ex rel. Sikeston v. Missouri Utilities Co. (1932) 331 Mo 337, 53 SW 2d 394.
7 State on inf. Shartel ex rel. Sikeston v. Missouri Utilities Co. (1932) 331 Mo 337, 53 SW 2d 394. Iowa Rules of Civil Procedure, Rule 102: "Every fact pleaded and not denied in a subsequent pleading, as permitted by these rules, shall be deemed admitted." But note State ex rel. Keble v. Capitol Ben. Assn. (1946) 237 Iowa 363, 21 NW 2d 890 where the Rule permitted contradiction, since the answer did not contain well-pleaded facts).
8 State ex rel. Chambers v. Bates (1937) 233 Ala 251, 170 So 370; People v. Baldridge (1915) 267 Ill 190, 108 NE 49; Dullam v. Wilson (1884) 53 Mich 392, 19 NW 112; People v. Shawver (1924) 30 Wyo 366, 222 P 11.
9 Illinois Rev. Stats, ch. 110, § 18-103.
§ 4.29
1 Louisiana Code of Civil Procedure, Art. 3782 (petition assigned for hearing not less than two nor more than ten days after service of the writ, with permission in the court to accelerate).
2 Wyoming Stats. Ann. § 1-31-130.
3 Minnesota Stats. Ann. § 546.34(4); State ex rel. Davis v. Avon Park (1934) 117 Fla 565, 158 So 159 (a commissioner).
4 State ex rel. Clark v. Klingensmith (1935) 121 Fla 297, 163 So 704.
5 Idem.
6 Idem.
7 Buckman v. State (1894) 34 Fla 48, 15 So 697 (when brought in circuit court); State ex rel. Landis v. S. H. Kress & Co. (1934) 115 Fla 189, 155 So 823 (same); Matter of Metz v. Maddox (1907) 189 NY 460, 82 NE 507; Seavey v. Van Hatten (1949) 276 App Div 260, 94 NYS 2d 402.
8 Alabama Code 1975, § 6-6-593 (if demanded in writing); Georgia Code Ann. § 64-204 (when there are issues of fact); Virginia Code § 8.01-643 (if defendant requests); Wisconsin Stats. Ann. § 784.02 (court may use a jury).
9 Michigan Court Rules 1985, Rule 3.306(e).
10 Pennsylvania Rules of Civil Procedure, Rule 1114.
11 State ex rel. Clark v. Klingensmith (1935) 121 Fla 297, 163 So 704 (when brought in Supreme Court); Attorney General v. Sullivan (1895) 163 Mass 446, 40 NE 843; State ex inf. Saunders v. Burger (1954) 364 Mo 548, 264 SW 2d 339; State v. Moores (1895) 56 Neb 1, 76 NW 550; State ex rel. Mullen v. Doherty (1897) 16 Wash 382, 47 P 958.
12 State ex rel. Smith v. Deasre (1956) 264 Ala 596, 88 So 2d 674, 678; Abbey v. Green (1925) 28 Ariz 53, 235 P 150; People ex rel. Stephenson v. Hayden (1935) 9 Cal App 2d 312, 49 P 2d 314 (noting that the rule "has often been criticized." 315); Hammer v. Commonwealth ex rel. Hoover (1937) 169 Va 355, 193 SE 496; Town of Cheshire v. McKenney (1980) 182 Conn 253, 438 A 2d 88, 91; State ex rel. Doherty v. Finnegan (1965) 25 Conn Supp. 390, 206 A 2d 477; State ex rel. Kenney v. Ranslow (1959) 21 Conn Supp. 294, 154 A 2d 526; State ex rel. Law v. Saxton (1889) 25 Fla 342, 5 So 801; People ex rel. Henderson v. Redfern (1966) 75 Ill App 2d 196, 220 NE 2d 323: "The plaintiff in quo warranto is not required to allege or set out any facts showing that the challenged act is unlawful."; Lymer v. Kumalae (1926) 29 Hawaii 392; People ex rel. Wiley v. Baker (1922) 219 Mich 629, 190 NW 273; State v. Davis (1902) 64 Neb 499, 90 NW 232 (where attorney general brings on own relation); People ex rel.
Judson v. Thacher (1887) 55 NY 525; Dore v. Superior Court (1932) 167 Wash 655, 9 P 2d 1087 (where prosecuting attorney brings on own relation); State ex rel. Patterson v. Land (1957) 231 Miss 529, 95 So 2d 764 (where State sues).
13 Manahan v. Watts (1900) 64 NJL 465, 469, 45 A 813; Abbey v. Green (1925) 28 Ariz 53, 235 P 150. Contra: Vrooman v. Michie (1888) 69 Mich 42, 36 NW 749.
14 State v. Davis (1902) 64 Neb 499, 90 NW 232; Dore v. Superior Court (1932) 167 Wash 655, 9 P 2d 1087; Brack v. Harrell (1934) 179 Ga 461,176 SE 29; State ex rel. Patterson v. Land (1957) 231 Miss 529, 95 So 2d 764; Haack v. Ranieri (1964) 83 NJ Super 526, 200 A 2d 522; Whitten v. Chapman (1928) 45 Idaho 653, 264 P 877; Abbey v. Green (1925) 28 Ariz 53, 235 P 150.
15 People ex rel. Smith v. City of San Jose (1950) 100 Cal App 2d 57, 222 P 2d 947 (burden upon city claiming annexation power to prove same); Wilkey v. State ex rel. Smith (1939) 238 Ala 121, 189 So 198 (in Alabama the defendant can make a general denial which puts upon the relator the burden of proving the acts alleged to be unsurpation; then the burden shifts to respondents to show their authority. P. 201). Section 4.09 is concerned with actions against persons and associations claiming franchises and privileges.
§ 4.30
1 Code of Alabama 1975, § 6-6-600; Alaska Stats. § 09.50.370; State ex rel. Gaski v. Basile (1977) 174 Conn 36, 381 A 2d 547; Hampson v. State (Del. 1967) 233 A 2d 155; State ex rel. Attorney General v. Gleason (1868) 12 Fla 190; Hawaii Rev. Stats. § 659-6; Illinois Rev. Stats., ch. 110, § 18-108; Commonwealth ex rel. Buckman v. Mason (Ky App 1957) 300 SW 2d 44; Michigan Stats. Ann. § 27A.4514; Nebraska Rev. Stats. § 25-21-135; New Jersey Stats. Ann. § 2A:66-7; North Carolina Genl. Stats. § 1-527; South Carolina Code § 15-63-190; South Dakota Code Laws § 21-28-17; West Virginia Code Ann. § 7.56.110; Wyoming Stats. Ann. § 1-31-118.
2 People ex rel. Fleming v. Shord (1893) 100 Cal 537, 35 P 163.
3 Canairo v. Searrao (1897) 11 Hawaii 22; Chinese Society v. Yee Yap (1918) 124 Hawaii 377.
4 White v. State ex rel. Fowler (1955) 262 Ala 694, 81 So 2d 267 (practice as a chiropractor); Hawaii Rev. Stats. § 659-6.
5 Ex parte Henshaw (1887) 73 Cal 486, 15 P 110; State ex rel. Gibbs v. Bloodworth (1939) 135 Fla 525, 185 So 339; Louisiana Code of Civil Procedure, art. 3785; Mississippi Code Ann. § 11-39-21 (contempt with fine to $5,000. and imprisonment if not paid).
6 Alaska Stats. § 09.50.370 (to $2,000.); California Code of Civil Procedure § 809 (to $5,000.); People v. California Protective Corp. (1926) 76 Cal App 354, 244 P 1089; People ex rel. Warfield v. Sutter St. Ry. Co. (1897) 117 Cal 604, 49 P 736; Michigan Stats. Ann. § 27A.4515 (to $2,000.); Vernon's Missouri Stats. Ann. § 531.050; New Jersey Stats. Ann. § 2A:66-7; New York Executive Law § 63-b (fine to $2,000.); North Carolina Genl. Stats. § 1-527; Wisconsin Stats. Ann. § 784.13 (to $2,000).
7 Illinois Rev. Stats, ch. 110, § 18-108 (fines to $25,000. per offense); Michigan Stats. Ann. s 27A.4521 (fines to $10,000).
8 North Dakota Century Code § 32-13-05; South Carolina Code § 15-63-110; South Dakota Codified Laws § 21-28-7; Wisconsin Stats. Ann. § 784.05.
9 Michigan Stats. Ann. § 27A.4531; Mississippi Code Ann. § 11-39-25; Nebraska Rev. Stats. § 25-21.136; South Carolina Code § 15-63-190; South Dakota Codified Laws § 21-28-17; Wyoming Stats. Ann. § 1-31-119.
10 People v. Mount Prospect (1975) 29 Ill App 3d 807, 331 NE 2d 373, 377.
11 Alaska Stats. § 09.50.350; California Code of Civil Procedure § 805; Colorado Rule 106; Iowa Rules of Civil Procedure §§ 303(a) and (b). Louisiana Code of Civil Procedure art. 3902; Michigan Stats. Ann. § 27A.4505; Nebraska Rev Stats. § 25-21.127; South Carolina Code § 15-63-120; South Dakota Codified Laws § 21-28-8; Wisconsin Stats. Ann. § 784.08.
12 Louisiana Code of Civil Procedure art 3902.
13 Arizona Rev. Stats. Ann. § 12-2042; Garcia v. Sedillo (1950) 70 Ariz 192, 218 P 2d 721; Georgia Code Ann. § 64-202; Iowa Code Ann. § 660.1; Kansas Rev. Stats. § 60-1204; Michigan Stats. Ann. § 27A.4505; New Jersey Stats. Ann. 2A:66-12; Wyoming Stats. Ann. § 1-31-115.
14 North Dakota Century Code § 32-13-08; South Carolina Code § 15-63-140; South Dakota Codified Laws § 21-28-10; Wisconsin Stats. Ann. § 784.10; Washington Rev. Code Ann. § 7.56.080.
15 Alaska Stats. § 09.50.350; Arizona Rev. Stats. Ann. § 12-2042; California Code of Civil Procedure § 805 (subsequent action); Iowa Code Ann. § 660.2 (subsequent action); Kansas Rev. Stats. § 60-1203; Michigan Stats. Ann. § 27A.4511 (either in quo warranto or subsequent action); Mississippi Code Ann. § 11-39-5; Nebraska Rev. Stats. § 25-21.130 (subsequent action within one year); North Dakota Century Code § 32-13-09; South Carolina Code § 15-63-110; South Dakota Codified Laws § 21-28-11 (subsequent action); Washington Rev. Code Ann. § 7.56.050 (either in quo warranto or subsequent action within one year); Wisconsin Stats. Ann. § 784.11 (subsequent
action); Wyoming Stats. Ann. § 1-31-116 (subsequent action within one year); New York Executive Law § 63-b; Nichols v. McLean (1886) 101 NY 526, 5 NE 347 (salary lost to plaintiff and received by defendant).
16 Iowa Code Ann. § 660.3.
17 California Code of Civil Procedure § 809; Connecticut General Stats. Ann. § 42-492; Iowa Rules of Civil Procedure, Rule 304; Michigan Stats. Ann. § 27A.4515; Mississippi Code Ann. § 11-39-19; Vernon's Missouri Stats. Ann. § 531.050; New York Executive Law § 63-b; North Carolina Gen. Stats. § 1-527; South Dakota Codified Laws § 21-28-19; Wisconsin Stats. Ann. § 784.13; Wyoming Stats. Ann. § 1-31-112.
18 Iowa Rules of Civil Procedure, Rule 304; Attorney General ex
rel. Wendrow v. Knapp (1945) 310 Mich 385, 17 NW 20 223; Mississippi Code Ann § 11-39-23; Vernon's Missouri Stats. Ann. § 531.050; Washington Rev. Code Ann. § 7.56.130.
19 Connecticut Gen. Stats. § 52-493 ("so far as it may appear to be an appropriate form of relief); Hawaii Rev. Stats. § 659-6 ("other appropriate relief); Iowa Rules of Civil Procedure, Rule 303(a) ("any provision necessary to enforce the rights so declared, or to accomplish the objects of the decision."). But note: State ex
rel. Landis v. Prevatt (1933) 110 Fla 29, 149 So 578 (no accounting).
§ 4.31
1 Allen v. Patterson (1899) 85 Ill App 256; State ex rel. Ponath v. Hamilton (Mo___) 240 SW 445.
2 Hampson v. State ex rel. Buckson (Del. 1967) 233 A 2d 155, 157.
3 State ex rel. Jones v. Wise (Del. Super. 1938) 9 W.W. Harr. 409, 200 A 418, 420; State ex rel. Guthrie v. Chapman (1936) 187 Wash 327, 60 P 2d 245.
4 Fulgham v. Johnson (1869) 40 Ga 164.
5 State v. Cahill (1906) 131 Iowa 286, 108 NW 453; State v. Wilson (1897) 121 NC 425, 28 SE 554.
6 State ex rel. Danforth v. Alford (Mo 1971) 467 SW 2d 55.
7 Emery v. Hennessy (1928) 331 Ill 296, 162 NE 835.
8 People ex rel. Lerch v. Sandman (1930) 338 Ill 404, 170 NE 211, 212.
9 State at inf. Dalton ex rel. Tucker v. Mattingly (Mo App 1955) 275 SW 2d 34.
10 Village of Bridgeview v. City of Hickory Hills (1971) 1 Ill App 3d 931, 274 NE 2d 925, cert. dnd. 407 US 921.
11 City of Coral Gables v. State ex rel. Watson (Fla 1949) 38 So 2d 48.
12 City of Winter Haven v. A. M. Klemm & Sons (1938) 132 Fla 334, 181 So 153; City of Sebring v. Harder Hall Inc. (1942) 150 Fla 824, 9 So 2d 350.
13 Nakakuni v. Towse (1939) 34 Hawaii 897, 903; People ex rel. Gilchrist v. Murray (1878) 73 NY 535, 538; Modlin v. State ex
rel. Townsend (1911) 175 Ind 511, 94 NE 826.
§ 4.32
1 People v. City of Oakland (1898) 123 Cal 45, 55 P 772.
2 State ex rel. Jones v. Wise (Del. Super. 1938) 9 W.W. Harr. 409, 200 A 418, 420; People v. Reinberg (1914) 263 Ill 536, 105 NE 715; Welch v. Cook (1873) 7 How. (NY) Prac. 282; Fawcett v. Superior Court (1896) 15 Wash 342, 46 P 389.
3 Alabama Code 1975, § 6-6-603; People v. City of Oakland (1898) 123 Cal 45, 55 P 772; State ex rel. Bridges v. Henry (1910) 60 Fla 246, 148 So 578; People v. Union Elevated Rr. (1915) 269 Ill 212, 110 NE 1.
4 State ex rel. Johnson v. Lally (1962) 59 Wash 2d 849, 370 P 2d 971. State v. Wilcox (1914) 156 Wis 172, 145 NW 655.
5 People ex rel. Cherry Valley Fire Protection Dist. v. City of Rockford (1972) 2 Ill App 3d 731, 277 NE 2d 736.
6 State ex inf. Mansur ex rel. Fowler v. McKown (1926) 315 Mo 1336, 290 SW 123.
7 State ex rel. Tomasic v. Cahill (1977) 222 Kan 570, 567 P 2d 1329; State ex rel. Burnquist v. Village of North Pole (1942) 213 Minn 297, 6 NW 2d 458.
Part Three
QUO WARRANTO OUTSIDE THE UNITED STATES
§ 4.33 HISTORY AND NATURE OF QUO WARRANTO
Quo warranto was recorded for the first time in 1198.l It was a writ of right belonging to the King against any subject who claimed or usurped any office, franchise or liberty to inquire by what authority he supported his claim in order to determine the right.2 It was a civil writ at the suit of the Crown and issued out of Chancery.3
At a very early and unascertainable date the writ of quo warranto fell into disuse and was replaced by a criminal information in the nature of quo warranto brought usually by Crown officers.4 Later the practice developed of private individuals exhibiting informations in the nature of quo warranto, without any judicial authority, to prosecute defendants for the minor crimes against them.5 The practice of private individuals filing informations was abused and became so vexatious and oppressive that in 1692 the Statute 4 & 5 Wm. & M., c. 18 was passed which required an express order of the Court to file the information, as well as a recognizance from the person procuring the information to prosecute it effectively.
In 1710 the Statute 9 Anne c. 25 authorized a proper officer of the court, with leave of the court, to exhibit an information in the nature of quo warranto, at the relation of any person desiring to prosecute the same to be called the relator. It is often thought that the Statute of Anne is the basic authority for courts in the common law world to issue the information on the relation of private individuals, but Chief Justice Owen Dixon of the High Court of Australia and others have impressively proved that courts can issue the information even in the absence of the Statute of Anne or its modern equivalent.6
Beginning in the last century the Australian States had provided a statutory action that was a speedier substitute for the information in the nature of quo warranto and since then most actions to test the title to public office and to oust usurpers are brought under the statutes,7 although informations in quo warranto have been brought on occasion.8
In 1938 the United Kingdom Administration of Justice Act, § 9 abolished the information in the nature of quo warranto, and provided that the High Court can instead grant injunctions against persons usurping public offices, franchises and liberties. Comparably, British Columbia by its Judicial Review Procedure Act of 1979, c. 209, § 19(1) abolished quo warranto and replaced it by injunction, with provision in the following subsection authorizing courts to declare public offices vacant. In Nigeria, too, quo warranto has been replaced by injunction.9
The information in the nature of quo warranto is generally, throughout the common law world, recognized as a civil action.10 As such, legislation governing the practice is, in Canada, a matter of provincial competence.11 In Ontario by legislation, the writ of quo warranto and the information in the nature of quo warranto have both been replaced by notice of motion by the Attorney General to show cause why the defendant unlawfully exercises or usurps an office, franchise or liberty.12 The statute further provides for proceeding at the instance of a private relator, in the name of Her Majesty, with a requirement that the individual, before serving notice of motion, give security for the due and effective prosecution thereof.12 By statute in Manitoba14 and Rule of Court in Alberta15 quo warranto is restricted to those instances in which the matter is not governed by legislative act.
Where the modern statutes, authorizing substitutes for quo warranto, do not cover particular matters previously embraced by the information in the nature of quo warranto, it is "still possible to proceed for the information.16
§ 4.34 PURPOSE
The principal purpose of quo warranto has been to test the title to public officers and to remove usurpers who have been in
possession of the office.1 Informations in the nature of quo warranto issue only when the office is of a public nature.2 "The duties of the office must be duties and functions of a public nature," according to the Ontario Court.3 Quo warranto has been denied when the office is not a substantive one,4 or when it was held only at the pleasure of a superior.5 King's Bench has said: "The Court will not make an order of ouster, or even entertain the application, if the office is of a subordinate and inferior character...."6
For quo warranto to issue the office must be occupied and the defendant must be in occupation.7 King's Bench said in 1792: "No instance has been produced in which the Court has granted an information in the nature of quo warranto where the party against whom it was applied for has not been in the actual possession of the office."8 After the expiration of the defendant's term of office, quo warranto has been refused.9 However, when the object of the quo warranto action was not only to oust the defendant, but to substitute another in office, permissible under local law, the Queensland Court held the action would lie even though the defendant had resigned the office at the time.10
Even though an office was assumed by a person then qualified, quo warranto lies for his ouster if he later becomes disqualified under the applicable law.11 There have even been suggestions at times that quo warranto lies against a qualified officer if he commits illegalities or abuses his position,12 but the stronger authority is contra.13
Quo warranto is available in suits brought by attorneys general to oust persons acting as corporations without authority,14 but private relators cannot make this use of quo warranto.15
An information in the nature of quo warranto lies only in cases in which an office has been lawfully created by charter or statute, and this proceeding has been refused when sought to attack the legality of the creation of the office.16
In most jurisdictions, when quo warranto is brought to test the title of a defendant, it can test the validity of the election at which he was supposedly chosen, unless a statute specifically provides that the election is to be contested otherwise.17
In England quo warranto has traditionally been denied against officers of private corporations unless they were in the exercise of a franchise or authority from the Crown.18
§ 4.35 WHO ARE "OFFICERS" FOR PURPOSE OF QUO WARRANTO
To be an "officer" for purpose of quo warranto the individual must be occupying a post created either by Crown charter or by Parliamentary statute, having tenure of office, or at least being free from dismissal at the pleasure of a superior, and performing relatively important duties of a public nature.'
The following have been held to be "officers" for the purpose of quo warranto:
aldermen,2
borough councillors,3
clerk of guardians of the poor of a parish,4
clerk to parish vestry,5
county treasurer,6
county valuator,7
inspector under temperance act,8
judge,9
mayor,10
pound-keeper, '*
privy councillor,12
public utilities commissioner,13
school trustees,14
shire councillor,15
surrogate judge,16
tax assessors,17
town clerk,18
town councillors,19 and
vestrymen elected under parliamentary statute.20
Among the public servants held not to be "officers" for the purpose of quo warranto are:
a clerk to borough justices,21
members of a legislative assembly,22
a register of deeds,23
a rate collector,24
a clerk of a school board,25
a secretary for a grand jury,26 and
a petit constable.27
Because they were not public officers quo warranto has been denied in the case of:
a master of a hospital and free school,28 a surgeon at a private hospital,29 and a fellow of a college.30
§ 4.36 TO OUST PERSONS USURPING FRANCHISES AND PRIVILEGES
It was early held that a defendant's claim of right to conduct a court-baron was properly tested by quo warranto.l
Informations in the nature of quo warranto can be brought by attorneys-general2 (but not by private relators)3 against persons acting as a corporation without authority.
Private relators having a substantial interest, such as that of a stockholder in a corporation, have been given leave to file informations in the nature of quo warranto to test the claims of defendants to office in both commercial4 and religious5 corporations.
§ 4.37 DISCRETIONARY POWER OF THE COURTS
It is everywhere agreed that courts have a very broad discretion in passing upon applications for leave to file informations in the nature of quo warranto.l King's Bench has said: "Our discretion as to the issuing of quo warranto informations must be regulated by a regard to all circumstances which attend the application, and the consequences likely to follow,"2 and courts generally are agreed that in exercising discretion they are to consider all the prevailing facts and circumstances, including consequences of granting the writ.3
In the exercise of their discretion, courts have generally denied leave to file informations when the applicant had available to him another equally appropriate and effective remedy, or one which had been specifically designed for the particular situation.4
In quo warranto proceedings courts can and will inquire into the conduct and motives of the applicants,5 and courts have refused to grant leave, or the writ, where an applicant does not come into the court with clean hands.6
In their discretion courts have denied quo warranto when the applicant has been guilty of substantial delays and has failed to
show good reason for the delays.7 King's Bench had once laid down the rule requiring the action to be brought in six years,8 but far shorter delays than that have resulted in the denial of quo warranto.9
So, too, quo warranto has been denied when the applicant for the information has knowingly acquiesced in the assumption of office by an incumbent whom he now desires to show cause why he should not be removed, or in any other act that he now seeks to question.10
Quo warranto is denied when the matter has become moot. Illustratively, the writ is generally denied when the occupant of the office has died, resigned or his term of office is finished.11 However, even after resignation of the defendant officeholder, the writ has been granted on occasion when the applicant was seeking relief in addition to ouster.12
Quo warranto is customarily denied in the discretion of courts when it appears that grant of the writ would be ineffective or useless.13 Thus, the writ was denied to an applicant who, though reinstated, could legally and easily again be dismissed by his superiors.14
Before quo warranto is granted, the court must be convinced the issue is a substantial one.15
§ 4.38 STANDING OF APPLICANTS OR RELATORS
Commonwealth courts have held at times that an applicant for quo warranto need not be an aggrieved party or show any special interest in the issue or special damages,! and many quo warranto cases have seemingly accepted the interest of the relator as adequate.2 However, the Manitoba Court has said that a relator "must be a person substantially interested" in the issue,"3 and some other courts have rejected as inadequate the interest of applicants without indicating a controlling rule.4 Statutes at times indicate that "any interested person" can bring a complaint that another is usurping a public office.5
Courts have customarily demanded that private relators themselves be free from any taint or serious objection so far as their good faith or personal integrity in the matter was concerned.6
Citizens and ratepayers of a political entity are generally accepted as proper private relators to exhibit informations in the
nature of quo warranto to compel officers of their corporation to show by what authority they claim the office.7 Under the guise of attacking a claim to office, however, private relators cannot attack the validity of the charter of their public corporations.8 The High Court of Australia once interpreted the Taylor Case to mean that when quo warranto is being directed against an individual allegedly usurping an office, it cannot be resorted to for the purpose of challenging the validity of the office itself.9 This is too broad an interpretation and elsewhere it is recognized that quo warranto can properly be used to test the validity of an appointment to public office, so long as there is no attack upon the existence of the corporation.10
Where a number of individuals claim to be a corporation without any legal authority this, in effect, is the usurpation of a franchise, and private relators cannot bring the information against the whole corporation as a body, to show by what authority the individuals claim to be a corporation; such suit being proper only when brought by the Attorney General.11
Where the grievance is of a private nature, as where there has been usurpation by other private individuals of franchises, informations should be limited to the Attorney General,12 or, possibly, to individuals who can show they have been directly and specially injured by the acts of the defendants.13
Under modern statutes and rules of court requiring private applicants to seek leave of court for permission to file an information in the nature of quo warranto, or a modern equivalent, courts undoubtedly have very broad discretion to satisfy themselves that the applicant is a proper person to litigate the issue.14
§ 4.39 PLEADINGS AND PRACTICE
Applicants for informations in the nature of quo warranto in many jurisdictions have traditionally filed applications seeking leave of the court to file such informations, proceeding in the name of the Crown on relation of the applicant who then was referred to as the relator.1 The Manitoba Supreme Court stated in 1924:
"When a citizen of this Province now seeks to challenge the right of any private individual to hold or exercise a public office or franchise his
course is to apply to this Court for leave to file an information in the nature of quo warranto, calling upon the alleged usurper to shew by what warrant or authority he claims to hold that office or exercise that franchise. Such proceeding must be carried on in the King's name upon the relation of the challenger, who is therefore called the relator, against the usurper, who is termed the respondent."2
As indicated in a previous section3 courts customarily have a very broad discretion in determining whether leave should be granted. Leave to exhibit an information is not necessarily granted merely because a reasonable doubt is raised as to the validity of the defendant's right to the office or the franchise.4 The British Columbia Court has ruled that "an information will only be allowed if a prima facie case has been made out."5 Affidavits are customarily required in support of the application and, if not included, the application is dismissed.6 Such affidavits must state every material fact necessary to justify the information.7
Alternatively, applicants for quo warranto have often proceeded by notice of motion for a rule nisi or order nisi to compel the defendant to show cause why an information should not be granted.8 The notice of the motion is then served on the defendant. If the defendant fails to respond or the response is inadequate in law, the applicant moves to make the rule absolute.9 Motions for rules nisi or orders nisi must customarily specify the objections of the applicant to the defendant's usurpation of office or franchise,10 and must virtually everywhere be supported by affidavits.11
If the applicant secures leave of court to file an information, or either a rule nisi or order nisi, he must customarily show his good faith by entering into a recognizance that he will prosecute the information with effect, and will perform such orders as the court shall direct in the matter.12
Customarily, as in civil actions generally, pleadings in quo warranto can be amended with leave of the court.13
Upon receipt of the notice of motion for a rule nisi or an order nisi, a quo warranto defendant can move to discharge the rule or order.14 Substantively, he is able to show either that he is not occuping the office or exercising the franchise, or that he has lawful authority for the same.15
Although it has been said that "on an application for a quo warranto information the utmost strictness of proof is required,"16
the weight of authority places upon the defendant the burden of proving that he is either not occupying the office, or that he has lawful authority to occupy the same.17
If the relator prevails upon the trial or other disposition of the issues, he is entitled to judgment of ouster removing the defendant from the usurped office or franchise.18
Costs are awarded to the prevailing party in a quo warranto action in the discretion of the court.19
Book Four NOTES TO PART THREE
§4.33
1 State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 344; Holdsworth, History of English Law (1922) I, 88 et seq.; Pollock & Maitland, History of English Law (2d ed. 1899) I, 572 et seq; Jenks, Prerogative Writs in English Law, 32 Yale L. J. 523, 527 (1923).
2 Shaw v. Trainor (1967) 53 M.P.R. 380, 381-2 (P.E.I.); R. ex rel. Morton v. Roberts (1912) 26 O.L.R. 263, 4 D.L.R. 278.
3 Liston v. Davies (1937) 57 C.L.R. 424, 431 (Dixon, J.).
4 Shaw v. Trainor (1967) 53 M.P.R. 380, 381-2 (P.E.I.); Jenks, Prerogative Writs in English Law, 32 Yale L.J. 523, 527 (1923).
5 Liston v. Davies (1937) 57 C.L.R. 424, 433 (Dixon, J.); Shaw v. Trainor (1967) 53 M.P.R. 380, 381-2 (P.E.I.).
6 Liston v. Davies (1937) 57 C.L.R. 424, 434 (Dixon, J.); R. v. Williams (1757) 1 Burr. 402, 97 E.R. 371; In re Darley (1846) 8 E.R. 1513, 1520 (Tindall, C.J.).
7 R. v. Robinson; ex parte Torrance (1875) 1 V.L.R. 50; Queensland Local Authorities Act 1902, § 23; R. v. Brown; ex parte Bayley (1920) Q.S.R. 19; R. v. Reid; ex parte McFadden (1909) Q.S.R. 273; Victoria Local Government Act 1915, § 156; Re Hutchinson; ex parte Owen (1921) V.L.R. 350 (dictum that quo warranto could have been brought with leave of court); Victoria Local Government Act 1928, § 157; Mayer v. Blits (1939) V.L.R. 136; Victoria Local Government Act 1958, § 157; Scarcella v. Morgan (1962) V.R. 201; Ex parte Hill; re Municipality of New Town (1908) 4 Tas. L.R. 62; Re Carroll; ex parte Dognall (1888) 14 V.L.R. 607; In re Hendy; ex parte Clayton (1902) 28 V.L.R. 105.
8 Liston v. Davies (1937) V.L.R. 222, (1937) 57 C.L.R. 424; R. v. Hobler (1883) 1 Q.L.J. 132; R. v. Luck ex rel. Nieuwhop (1967) Tas. S.R. 267 (commenting that the Supreme Court Civil Proc. Act 1932 "provides an ancient and cumbersome procedure" in quo warranto).
9 Okonkwo, Introduction to Nigerian Law (London 1980) 126.
10 R. ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905 (Man.); Shaw v. Trainor (1967) 53 M.P.R. 380, 381 (P.E.I.); R. ex rel. Moore v. Nagle (1894) 24 O.R. 507.
11 Shaw v. Trainor (1967) 53 M.P.R. 380 (P.E.I.).
12 R.S.O. 1980, ch. 223, § 150(1).
13 R.S.O. 1980, ch. 223, § 150(2).
14 Queen's Bench Act, C.C.S.Man., ch. 280, §§ 96, 98.
15 Alberta Rules of Court, Rule 745.
16 R. ex rel. Morton v. Roberts (1912) 26 O.L.R. 263, 4 D.L.R. 278, 284 (Riddell, C.J.).
§ 4.34
1 R. v. Beer (1903) 2 K.B. 693; Ruddell v. Garrett (1899) 12 Man. R. 563 (C.A.); R. v. Brown (1923) 1 W.W.R. 1337, affd. (1923) 2 W.W.R. 511, 33 Man. R. 184; Re Carroll; ex parte Dognall (1888) 14 V.L.R. 607; Re Municipality of Richmond (1958) 26 W.W.R. 41,14 D.L.R. 2d 132; R. v. Chester Corp. (1895) 5 El. & Bl. 531, 538 (L. Campbell, C.J.); Kashinath Laxman v. State of Bombay (A.I.R. 1954 Bom.) 41; Mahichandra v. Secretary, Local Self-Government (A.I.R. 1952 Assam) 119; Anand Bihari Mishra v. Ram Sahay (A.I.R. 1952 M.B.) 31.
2 R. v. Speyer; R. v. Cassel (1916) 1 K.B. 595, 629 "The Court will not make an order of ouster, or even entertain an application, if the...duties are of a private or quasi-private character" (Lush, J.); R. v. Hespeler (1854) 11 U.C.Q.B. 222 (C.A.) (no quo warranto to remove director of private corporation). But contra: Gimpleman v. Bercovici (1956) Q.Q.B. 130, affd. on other grounds (1957) S.C.R. 128. R. v. Dawbeny (1744) 2 Str. 1196, 93 E.R. 1123 (not for removal of church-wardens); R. v. Guardians of the Poor of St. Martins in the Fields (1851) 17 Q.B. 149, 117 E.R. 1238 (clerk of Guardians held to be an officer of a public nature; Erie, J. at 163 indicating three tests for quo warranto: source of the office; tenure and duties). Ex parte Gilbert; re Albert Mining Co, (1873) 15 N.B.R. 929 (no quo warranto "for usurping an office which is not of a public nature, although such office may have been created by a charter of the Crown.").
3 R. v. Hanniwell (1948) O.R. 46, 47, (1948) 2 D.L.R. 148.
4 Hammond v. McLay (1864) 24 U.C.Q.B. 56 (register of deeds).
5 Bradley v. Sylvester (1871) 25 L.T. 459 (Q.B.).
6 R. v. Speyer; R. v. Cassel (1916) 1 K.B. 595, 629 (Lush, J.).
7 R. v. Tidy (1892) 2 Q.B. 179; Peter v. Kendal (1827) 6 B. & C. 703, 710 (K.B.); R. v. Whitwell (1792) 101 E.R. 48 (K.B.); Youville School Dist. v. Bellemere (1904) 14 Man. R. 511 (C.A.);
R. v. Clark (1943) O.R. 501; R. v. Armstrong (1856) 25 L.J.Q.B. 238; Jobin v. Beaudoin (1940) 78 Q.S.C. 97; R. v. Jones (1873) 28 L.T. 270; R. v. Bean; ex parte Schofield (1934) 2 D.L.R. 705 (N.B.C.A.); Ex parte Gallagher (1886) 26 N.B.R. 73 (held sufficient proof of possession, though defendant had never been sworn in); Re Mitchell (1879) 2 S.C.R. (n.s.) (N.S.W.) 214.
8 R. v. Whitwell (K.B. 1792) 5 Term Rep. 85, 22 Eng. Ruling Cases 1, 3 (Buller, J.).
9 R. v. Hodson (1842) 4 Q.B. 648.
10 R. v. Hobler(1883) 1 Q.L.J. 132.
11 R. v. Beer (1903) 2 K.B. 693; R. v. Mack (1907) 41 N.S.R. 128; Coughlan & Mayo v. Victoria (1893) 3 B.C.R. 57.
12 Gosselin v. Drouin (1959) Q.Q.B. 201, 210 (C.A.); R. v. Speyer; R. v. Cassel (1916) 1 K.B. 595, 628 (Lush, J.).
13 Begin v. Bolduc (1944) Q.K.B. 725 (C.A.); Bruce & Meadley v. Reynett et al. (1979) 4 W.W.R. 408, 419 (Tr. Div. Fed. Ct. of Canada, Walsh, J.).
14 R. v. Ogden (1829) 10 B. & C. 230, 109 E.R. 436.
15 R. v. Carmarthen Corp. (1759) 2 Burr. 869; R. v. Ogden (1829) 10 B. & C. 230, 109 E.R. 436.
16 R. v. MacFarlane; ex parte O'Flanagan & ex parte O'Kelly (1923) 32 C.L.R. 518, 527-8 (Knox, C.J.).
17 Re Municipality of Richmond (1958) 26 W.W.R. 41, 14 D.L.R. 2d 132 (B.C.).
18 R. v. Bedford Level Corp. (1805) 5 East 356.
§ 4.35
1 R. v. Speyer; R. v. Cassel (1916) 1 K.B. 595; R. v. Guardians of the Poor of St. Martins in the Fields (1851) 17 Q.B. 149, 117 E.R. 1238; Ex parte Gilbert; re Albert Mining Co. (1873) 13 N.B.R. 929; R. v. Hanniwell (1948) O.R. 46,47, (1948) 2 D.L.R. 148; Hammond v. McLay (1864) 24 U.C.Q.B. 56; Bradley v. Sylvester (1871) 25 L.T. 459 (Q.B.); R. v. Bayly (1898) 21.R. 335; Darley v. R. (1846) 12 Cl. & Fin. 520, 8 E.R. 1513; Wali Ahmed v. Mahfal Hag (P.L.D. 1957 Dacca 209 (a "substantive" office).
2 Coughlan & Mayo v. Victoria (1893) 3 B.C.R. 57. R. v. Reid; ex parte McFadden (1909) Q.S.R. 273.
3 R. v. Parry (1837) 6 Ad. & E. 810, 112 E.R. 311; R. v. Laurens (1872) 2 V.L.R. (law) 73.
4 R. v. Guardians of the Poor of St. Martins in the Fields (1851) 17 Q.B. 149, 117 E.R. 1238.
5 R. v. Burrows (1892) 1 Q.B. 399.
6 Darley v. R. (1846) 12 Cl. & Fin. 520, 8 E.R. 1513.
7 Ex parte Gallagher (1886) 26 N.B.R. 73.
8 R. v. Heighten (1922) 55 N.S.R. 512, 69 D.L.R. 386.
9 Re Toronto Ry. & Toronto (1918) 44 O.L.R. 381, revd. on other grounds (1920) 1 W.W.R. 755 (P.C.).
10 R. v. Chester Corp. (1855) 5 El. & Bl. 531, 538; R. v. Pinkstone (1888) L.R. (N.S.W.) 201.
11 Ex parte Everingham (1870) 9 S.C.R. (N.S.W.) 250.
12 R. v. Speyer;^v. Cassel (1916) 1 K.B. 595 (denied on facts).
13 Winnipeg v. Winnipeg Electric Ry. Co. (1920) 3 W.W.R. 246, 256-7, 54 D.L.R. 445 (Man.).
14 Askew v. Manning (1876) U.C.Q.B.R. 345; R. ex rel. Moore v. Nagle (1894) 24 O.R. 507. R. ex. rei. McArthur v. Maycock (1924) 3 W.W.R. 540, (1924) 4 D.L.R. 1222.
15 R. v. Burke (1938) Q.S.R. 165.
16 Re Hannon; Rimmer v. Hannon (1920) 2 W.W.R. 513, 53 D.L.R. 463, affd. 14 Sask. L.R. 387, 60 D.L.R. 637.
17 Re McPherson & Beeman (1859) 17 U.S.Q.B. 99 (C.A.).
18 R. v. Bonfield (1869) 1 A.J.R. 4 (Vic. S.Ct.).
19 R. v. Parry (1837) 6 Ad. & E. 810, 112 E.R. 311.
20 R. v. Soutter (1891) 1 Q.B. 57.
21 R. v. Fox (1858) 8 E. & B. 939.
22 R. v. Clark (1943) O.R. 501, (1943) 3 D.L.R. 684, leave to appeal refused (1944) S.C.R. 69. State ex rel. Attorney General v. Tomlinson (1878) 20 Kan 692, 703 reported not a single case where quo warranto was used to oust a member of the legislature. Note, however, State ex rel. Jones v. Lockhart (1954) 76 Ariz 390, 265 P 2d 447. Indian and Pakistani courts have given standing to members of legislative assemblies to file quo warranto to check the right of a defendant to serve as speaker of the assembly. Maseh Ullah v. Abdul Rehman (A.I.R. 1953 All. 193): Ahmad Saeed Kirman v. Fazal Elahi (P.L.D. 1956 Lah) 807.
23 Hammond v. McLay (1864) 24 U.C.Q.B. 56.
24 R. v. Whelan (1887) 20 L.R.Ir. 461.
25 Bradley v. Sylvester (1871) 25 L.T. 459.
26 R. v. Bayly (1898) 2 I.R. 335.
27 Anonymous (1729) 94 E.R. 190.
28 R. v. Mousley (1846) 8 Q.B. 946.
29 R. v. Auchinlekc (1891) 28 L.R.Ir. 404.
30 R. v. Gregory (1772) 4 Term Rep. 240.
§ 4.36
1 R. v. Stanton (4 Jac. 1) 79 E.R. 223.
2 R. v. Ogden (1829) 10 B. & C. 230, 109 E.R. 436.
3 R. v. Taylor (1840) 11 Ad. and El. 949; R. v. Ogden (1829) 10 B. & C. 230, 109 E.R. 436; R. v. Marmarthen Corp. (1759) 2 Burr. 869.
4 Gimpelman v. Bercovici (1956) Q.Q.B. 130.
5 Serbian Orthodox Ecclesiastic School Community v. Vlaislavlje-vic (1970) Q.L.R. 386.
§ 4.37
1 R. v. Parry (1837) 6 Ad. & E. 810, 112 E.R. 311 (K.B.); R. v. Wardroper (1766) 4 Burr. 1963, 98 E.R. 23: "The courts are to exercise a sound discretion upon the particular circumstances of every case." (L. Mansfield, C.J.); R. ex rel. Craig v. Ego (1910) 15 W.L.R. 506, 508 (B.C.C.A.) ("a wide discretion"); R. v. Galloway (1886) 3 Man. R. 297; R. v. Ellis (1935) 50 B.C.R. 325; R. v. Johnston (1923) 56 N.S.R. 214, (1923) 2 D.L.R. 278; R. v. Stevens (1969) 3 D.L.R. 3d 668 (N.S.); Ex parte Torrens (1870) 13 N.B.R. 196; R. v. Ryan (1849) 6 U.C.Q.B. 296; Leghari v. Pakistan (P.L.D. 1967 Lahore) 227; Re Jones & Stribell (1909) 10 W.L.R. 508 (Sask.); Re Municipality of Richmond (1958) 26 W.W.R. 41,14 D.L.R. 2d 132,134; "The granting or withholding of leave by the court is purely discretionary...." State ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 909; Surrendr Mohan v. Gopal Chandra (A.I.R. 152 Orissa) 359.
2 R. v. Parry (1837) 6 Ad. & E. 810, 823, 112 E.R. 311 (K.B., L. Denman).
3 Hassan v. Hussain (P.L.D. 1963 S.C.) 203; R. ex rel. Tolfree v. Clarke et al. (1943) O.R. 501, (1943) 3 D.L.R. 684; Surrendr Mohan v. Gopal Chandra (A.I.R. 1952 Orissa) 359; "The Court is bound to consider all the circumstances of the case before they disturb the peace and quiet of any corporation." R. v. Stacey (1785) 1 T.R. 1 (L. Mansfield).
4 R. v. Stevens (1969) 3 D.L.R. 3d 668 (N.S.); Paquette v. Sigouin
(1957) Q.P.R. 419, (1958) Q.S.C. 363; R. v. Ellis (1935) 50 B.C.R. 325; Yusuf v. Khan (P.L.D. 1968 Lah.) 30; Ex parte Nadeau (1914) 42 N.B.R. 473; Re Municipality of Richmond
(1958) 26 W.W.R. 41, 14 D.L.R. 2d 132, 134; R. ex rel. McArthur v. Maycock (1924) 3 W.W.R. 540, (1924) 4 D.L.R. 1222 (dictum). Election statutes have at times been construed to displace quo warranto. Bhairulal Chunilal v. State of Bombay, 55 Bombay L.R. 882.
5 Everett v. Griffiths (1924) 1 K.B. 941, 959: "It is plain, however, that in quo warranto proceedings the court can and will inquire into the conduct and motives of the relator." (McCardle, J.); R. v. Parry (1837) 6 Ad. & E. 810, 820, 112 E.R. 311 (L. Denman, C.J.); R. v. Lofthouse (1866) L.R. 1 Q.B. 433, 440 (Blackburn, J.); R. v. Standish (1884) 6 O.R. 408, 409; R. v. Evans (1899) 31 O.R. 448, 451.
6 R. v. Pinkstone (1888) L.R.(N.S.W. 201, 206 ("The Court has laid down the rule that it will not grant the writ where the relator does not come to the Court with clean hands.").
7 R. v. Laurens (1872) 2 V.L.R. (Law) 73; R. v. Dawes (1767) 4 Burr. 2022, 98 E.R. 54.
8 R. v. Dicken (1791) 4 Term Rep. 282; R. v. Speyer; R. v. Cassel (1916) 1 K.B. 595, 623.
9 Re Election of Crosman & McLeod (1922) 49 N.B.R. 495 (six months); R. v. Johnston (1923) 56 N.S.R. 214, (1923) 2 D.L.R. 278 (twenty months).
10 R. v. Carter (1774) 1 Cowp. 58 (dictum, L. Mansfield); R. v. Lofthouse (1866) L.R. 1 Q.B. 433; Foster v. Stokes (1883) 2 O.R. 590; Re Spence (1863) 5 N.S.R. 333, 335; R. v. Pinkstone (1888) L.R. (N.S.W.) 201; R. v. Clarke (1860) 1 East 38,102 E.R. 15; R. v. Luck ex rel. Nieuwhop (1967) Tas. S.R. 267 (discretion exercised to refuse application where defect in defendant's election known to relator, but not where defect was latent).
11 R. v. Evans (1899) 31 O.R. 448 (C.A.).
12 R. v. Warlow (1813) 2 M. & S. 575; R. v. Blizard (1866) L.R. 2 Q.B. 55.
13 R. v. Fox (1855) 8 E. & B. 939; R. v. Speyer, R. v. Cassel (1916) 1 K.B. 595, 612; R. v. Ryan (1849) 6 U.C.Q.B. 296; Machichandra v. Secretary, Local Self-Government (A.I.R. 1952 Assam) 119.
14 Ex parte Richards (1878) 3 Q.B.D. 368.
15 R. v. Cousins (1873) L.T.Q.B. 124.
§ 4.38
1 Khan v. Sultan (P.L.D. 1974 S.C.) 228; R. ex rel. Township of Stamford v. McKeown (1934) O.R. 662, (1934) 4 D.L.R. 644, 646: "The object of the proceeding is to enable any person subjected to the alleged jurisdiction to question such jurisdiction."
2 McCawley v. R. (1920) A.C. 691; Darley v. R. (1846) 12 Cl. & Fin 520, 8 E.R. 1513.
3 State ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 910; R. v. Galloway (1886) 3 Man.R. 297.
4 R. ex rel. Craig v. Ego (1910) 15 W.L.R. 506 (B.C.C.A.).
5 E.g., Quebec Code of Civil Procedure, Art. 987; Gimpleman v. Bercovici (1956) Q.Q.B. 130, 134.
6 State ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 910; R. v. Pinkstone (1888) L.R. (N.S.W. 201, 206. Additional authorities are indicated in the previous section.
7 R. v. Quayle (1840) 11 AD. & E. 508 (town councillor); R. v. Hodge (1819) 2 B. & Aid. 345 (chief burgess); R. ex rel. Township of Stamford v. McKeown (1934) O.R. 662, (1934) 4
D.L.R. 644; R. v. White (1836) 5 Ad. & E. 614, 111 E.R. 1297; R. v. Speyer; R. v. Cassel (1916) 1 K.B. 595, 613: "A stranger to the suit can obtain prohibition and I see no reason why he should not in a proper case obtain an information in quo warranto." (L. Reading, C.J.); Biman Chandra v. Governor of West Bengal (A.I.R. 1952 Cal.) 799.
8 R. v. Taylor (1840) 11 Ad. & E. 949, 113 E.R. 675; R. v. Jones (1863) 8 L.T. 503; R. v. Ogden (1829) 10 B. & C. 230, 109 E.R. 436; R. v. Carmarthen Corp. (1759) 2 Burr. 869.
9 R. v. MacFarlane; ex parte O'Flanagan and Kelly (1923) 32 C.L.R. 518.
10 Shaw v. Trainor (1967) 53 M.P.R. 380, 387 (R.E.I.); People ex
rel. McPhee v. Sargent (1966) 58 W.W.R. 567, 60 D.L.R. 2d 641, 644-5 (Taylor, C.J.) affd. 60 W.W.R. 604, 64 D.L.R. 2d 153; McCawley v. R. (1920) A.C. 691 (on appeal from High Ct. of Australia, 26 C.L.R. 9); Biman Chandra v. Governor of West Bengal (A.I.R. 1952 Cal.) 799; G. D. Karkare v. T.L. Shevde (A.I.R. 1952 Nag) 330.
11 R. v. Ogden et al. (1829) 10 B. & C. 230, 109 E.R. 436 (L. Tenterden, C.J.).
12 Sir William Lowthers Case (Mich. Term, 12 Geo. II) 2 Ld. Raym. 1409.
13 Cf. Gimpelman v. Bercovici (1956) Q.Q.B. 130, and Serbian Othordox Ecclesiatic School Community v. Vlaislavljevic (1970) Q.L.R. 386.
14 The cases are discussed in Section 4.37.
§ 4.39
1 R. v. Ryan (1849) 6 U.C.Q.B. 296; R. v. Stevens (1969) 3 D.L.R. 3d 668 (N.S.); R. ex rel. McArthur v. Maycock (1924) 3 W.W.R. 540 (1924) 4 D.L.R. 1222 (Man.); Serbian Orthodox Ecclesiastic Community v. Vlaislavljevic (1970) Q.L.R. 386, 392: "the proper way for this to be determined is on an application for leave to issue an information of quo warranto."; Shaw v. Trainor (1967) 53 M.P.R. 380 (P.E.I.).
2 R. ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 909. (Man.).
3 Section 4.37.
4 Re Hannon; Rimmer v. Hannon (1920) 2 W.W.R. 513, 53 D.L.R. 463, 465 (Sask.).
5 Re Municipality of Richmond (1958) 26 W.W.R. 41, 14 D.L.R. 2d 132, 134 (B.C.); "The court should be reasonably satisfied that there is a real weakness in the respondent's right to hold the
office...." State ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 910 (Man.).
6 R. v. Good (1922) 1 W.W.R. 712 (Man.).
7 Re Mitchell (1879) 2 S.C.R. (n.s.) (N.S.W.) 214.
8 R. v. Galloway (1886) 3 Man. R. 297; Queen v. Savoie; ex parte Elsiger (1954) 3 D.L.R. 65 (N.B. C.A.); R. v. Pinkstone (1888) L.R. (N.S.W.) 201; R. v. Bean; ex parte Schofield (1934) 2 D.L.R. 705 (N.B.); R. ex rel. McPhee v. Sargent (1966) 60 D.L.R. 2d 641 (B.C.); R. v. Ellis (1935) 50 B.C.R. 325; R. ex rel. Township of Stanford v. McKeown (1934) O.R. 663; R. v. Quesnel (1909) 11 W.L.R. 96,19 Man. R. 20; Ontario Judicature Act § 147(1) ff.; Ex parte Gallagher (1886) 26 N.B.R. 73; Ex parte Murchie; re Levesque (1914) 42 N.B.R. 541; Maseh Ullah v. Abdul Rehman (A.I.R. 1953 All.) 193 (indicating that prior to the abolition of quo warranto in England, customary practice under Ord. 52 Rules of Supreme Court was to apply by motion, in the same manner as any other motion).
9 R. v. Pinkstone (1888) L.R.(N.S.W.) 201; R. v. Burke (1938) Q.S.R. 165.
10 Alberta Court Rules, Rule 747; Saskatchewan Crown Practice Rules, Rule 16.
11 R. v. Good (1922) 1 W.W.R. 712 (Man.); Re Mitchell (1879) 2 S.C.R.(n.s.)(N.S.W.) 214; Queen v. Savoie, ex parte Elsiger (1954) 3 D.L.R. 65 (N.B.C.A.).
12 R. ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 909; Ontario Judicature Act § 147(2).
13 R. v. George (1912) 1 W.W.R. 1094 (Sask.).
14 R. v. Pinkstone (1888) L.R. (N.S.W. 201; R. v. Burke (1938) Q.S.R. 165; Ex parte Torrens (1870) 13 N.B.R. 196.
15 "The only pleadings possible in quo warranto are justification and disclaimer." R. v. Bean; ex parte Schofield (1934) 2 D.L.R. 705 (N.B.C.A.).
16 R. v. Calloway (1886) 3 Man. R. 297, 301.
17 R. ex rel. Whittaker v. Shannon (1930) 43 B.C.R. 129; Locas v. Cherrier (1941) 45 Q.P.R. 21.
18 R. ex rel. Matheson v. Huber (1924) 2 W.W.R. 596, (1924) 2 D.L.R. 905, 909.
19 R. v. Evans (1899) 31 O.R. 448. R. v. Lamont (1896) 3 Terr. L.R. 371.
Appendix Three
THE WRIT OF PROCEDENDO
§ 3.00 HISTORY OF THE WRIT
Procedendo ad justicium is an ancient prerogative writ.1 Originally, procedendo issued as part of the royal prerogative.2
At an early date, procedendo as a judicial writ issued out of the court of chancery.3 Blackstone wrote: "A writ of procedendum ad justicium issues out of the court of chancery, when judges of any subordinate court do delay the parties; for that they will not give judgment either on one side or the other, when they ought to do so. In this case a writ of procedendo shall be awarded, commanding them in the King's name to proceed to judgment; but without specifying any particular judgment."4
At a later time in England the writ of procedendo ad justicium issued not only out of Chancery, but also out of the three superior common law courts, King's Bench, Excheqeur and Common Pleas, and could be issued by single judges of these tribunals.5 In the discretion of the judges, procedendo ad justicium could be issued immediately or on a show cause order. 6
In the United States, the writ of procedendo is part of our common law heritage from Britain and has been awarded here since the Revolution.7
§ 3.01 NATURE OF THE WRIT
Procedendo ad justicium is a common law writ.l It has often been described as a prerogative writ,2 but it currently is better spoken of as one of the extraordinary writs.3
Procedendo when brought by private parties should be seen as a discretionary writ.4 Courts have a large area of discretion in deciding whether to grant the writ,5 and it is readily denied where a court discerns another remedy at law or equity is readily available to the applicant.6
Procedendo is "a writ commanding an inferior court to proceed to judgment."7 The term "procedendo" is frequently used by courts interchangeably with "mandate" and "remittitur" orders comparably returning actions to inferior courts for further adjudication.8
Writs of procedendo are formal notifications from superior courts to lower courts, indicating that the former relinquish their jurisdiction, and that the latter are to resume jurisdiction.9
Procedendo is a writ normally addressed only to courts and judges, but occasionally it is addressed to administrative bodies performing quasi-judicial functions.10 By statute in Florida, the Public Service Commission is entitled to procedendo to run to the railroads and utilities subject to the jurisdiction of the Commission, mandating that they obey both the law and its orders.11
§ 3.02 COURTS AUTHORIZED TO ISSUE THE WRIT
The writ of procedendo ad justicium has been issued most frequently by courts of chancery,l although in England it has issued also from King's Bench, Excheqeur and Common Pleas.2 Elsewhere in the common law world it has issued from the high courts of the jurisdiction,3 and also at times from the local equivalent of King's Bench.4
In the United States, constitutions specifically have authorized the issuance of procedendo by state supreme courts.5 Furthermore, the common constitutional authorization to such courts to issue "all writs necessary" has been construed by a state supreme court to authorize issuance of procedendo.6 Statutes additionally confer upon supreme courts authority to issue the writ of procedendo.7 Additionally, the Iowa Supreme Court has written persuasively that a high court in a common law jurisdiction has the inherent power to issue a writ of procedendo; no constitutional or statutory authorization being necessary.8
Intermediate appellate courts have had authority to issue procedendo,9 and at times all courts of general jurisdiction in a state have had such power.10
§ 3.03 PURPOSE OF THE WRIT: (A) ENDING DELAYS BY INFERIOR TRIBUNALS
Blackstone wrote that the writ of procedendo ad justicium issued "where judges of any subordinate court do delay the parties, for that they will not give judgment either on one side or the other, when they ought to do so."1
Where inferior courts have abused their discretion in granting stays preventing plaintiffs from proceeding with their civil actions, courts have granted such persons writs of procedendo.2
Comparably, where trial courts have abused their discretion in granting continuances, procedendo has been accepted as proper to compel the inferior tribunal to end such delays.3
When a Workmen's Compensation Commission refused to hear a case, in the wrongful belief that it lacked jurisdiction, the Ohio Supreme Court granted the writ of procedendo to the affected laborer.4
In Commonwealth countries, too, the writ of procedendo has issued from higher courts ordering magistrates to proceed in hearing criminal charges.5
§ 3.04 PURPOSE OF THE WRIT: (B) RETURN TO TRIAL COURT AFTER APPEAL DENIED
Historically writs of procedendo ad justicium have been used most frequently when a party to litigation in a lower court had secured a certiorari, or otherwise persuaded an appellate court to review proceedings below, and then the appeal had been dismissed, whereupon the appellate court employed the writ of procedendo to return the case to the lower court either to complete the trial, or to render judgment and, if appropriate, impose sentence.1
Where before or during trial defendants in criminal prosecutions had secured a certiorari, but the appellate court saw action was inadvisable, it has used the writ of procedendo to return the prosecution to the trial court to proceed. Illustratively, when a defendant charged with obstructing a highway had secured a
certiorari from Quarter Sessions, Lord Denman, the Chief Justice in 1836 issued the writ of procedendo to send the case back for trial on the indictment when, in his words, the evidence showed "that justice was not the object in suing out the certiorari."2
When, after convictions below, defendants in criminal prosecutions have secured a certiorari, or otherwise secured appellate review, and the appellate court concluded proceedings below had been proper, it issued the writ of procedendo returning the case to the court below for entering judgment and imposing sentence. Thus, in 1703 when a person was convicted but secured a certiorari before sentence, Lord Holt, the Chief Justice, issued a writ of procedendo returning the case to the inferior court for sentencing, remarking that since the defendant had stood trial before the justices of the peace, he should be sentenced by them, leaving it possible for the defendant later to sue out a writ of error.3 Again, when a conviction had been reversed on appeal, but that, too, reversed by the Privy Council, the government secured a writ of procedendo to carry out the conviction, the New Brunswick Supreme Court indicating that in no case did a court on application for procedendo show a willingness to examine into the merits of the conviction below.4
When convictions were affirmed by appellate courts, such tribunals at times have lacked authority to impose sentences upon persons, and here the appellate courts have employed procedendo to return the prosecutions to the trial courts for sentencing.5
So, too, in appeals of civil cases, where the appellant fails to prosecute the appeal, procedendo issues from the appellate court returning the case to the trial court. The Illinois Supreme Court stated in 1930: "The practice of awarding the writ of procedendo after the dismissal of an appeal has been adopted by the courts of this State from the common law, and it has for nearly a century been the practice in case where an appeal is dismissed for want of prosecution to award a procedendo to the justice of the peace from which the appeal is taken."6 Whenever appeals must be dismissed for procedural defects, procedendo can be used to return the case to the court from which it had come.7
When a civil case has been removed to an appellate court and, for any reason, action by it is impossible or inadvisable, the writ of procedendo can be used to return the case to the trial court for
hearing or other appropriate resolution.8 Illustratively, where a judgment for the plaintiff is reversed on appeal, and the appellate court concludes there are questions of fact that must be resolved, it uses procedendo to command the court below to proceed to trial on such matters.9
§ 3.05 PURPOSE OF THE WRIT: (C) RELIEF TO DEFENDANTS CHARGED WITH CRIME
The writ of procedendo ad justicium has been available in a number of situations to provide relief to citizens charged with crime. In a 1794 English case when an indictment had been removed by certiorari from an inferior court, because the Crown desired to subject the defendant to outlawry process, the defendant who freely appeared for trial was given the writ of procedendo sending the case back for trial to the lower court.'
When, in another English case, an indictment for assault had been moved up to King's Bench, the defendant was able to secure procedendo returning the proceedings back to the trial court at Bristol, when he showed that he had confessed to the crime before the certiorari had been issued.2
When defendants in an American court were entitled as of constitutional right to trial by jury and a mayor presiding in municipal court could not provide them with such a trial, the defendants in an appellate court secured a procedendo ordering the mayor to discharge the persons or bind them over to an appropriate court, but not to try them.3
When a court below refuses improperly to hear a citizen's habeas corpus petition, the writ of procedendo can issue from an appellate court ordering the lower court to proceed with such a hearing.4
§ 3.06 PLEADING AND PRACTICE
At the common law, it was held that a writ of procedendo ad justicium could not issue until the certiorari and its return had been taken off the files.' Application was by motion for a rule nisi, with later opportunity to make absolute the rule.2
More modernly practice in the United States has been by suit, either in the plaintiffs own name3 or by the state on relation of the moving party.4 Pleadings are in the form of application for extraordinary writs in the jurisdiction and applications for the writ must aver that justice is better served by return of the proceedings to the court below. When the basis of the claim is that courts below have delayed hearing the plaintiffs cause, averment should indicate how the inferior tribunal has disregarded applicable rules or abused its discretion.5 When questions of fact require return to the court below, this should be pleaded and supported with affidavits.6
Parties served with the writ have been able to move to quash the writ for either substantive or procedural defects in application for the procedendo.7 Currently demurrers can be utilized, admitting the facts well pleaded but insisting they show no cause of action justifying the writ.8 The basic task of a defendant in procedendo is to show cause why the litigation should not be returned to the lower court for the disposition the plaintiff is seeking.9
Once the writ of procedendo issues and is served on the trial court, "the trial court has no discretion but to observe its command."10 In cases of disobedience or of neglect to act on the part of the judges to whom writs of procedendo have been sent, or refusal by them to act, they have been subject to punishment for contempt.11 Individuals whose rights have been adjudicated by the appellate courts and know the procedendo affects them but, nevertheless, act in violation of the procedendo from the appellate courts, have been held liable to injured parties in damages.12
When a certiorari has been set aside and procedendo issued, it is highly unlikely that another certiorari will issue under the identical factual situation.13
NOTES TO APPENDIX THREE
§ 3.00
1 3 Bl. Comm. *132; Territory of New Mexico ex rel. Wade v. Ashenfelter (1887) 4 NM 93, 12 P 879.
2 Clark v. Clark (1925) 98 W Va 419, 128 SE 194.
3 Comyns Digest of the Laws of England (London 1824) II, 317.
4 3 Bl. Comm. *109.
5 R. v. Scaife & Others (1852) 18 Q.B. 773, 118 E.R. 292; Comyns Digest of the Laws of England (London 1824) II, 317.
6 Comyns Digest of the Laws of England (London 1824) II, 319 note 3.
7 State v. Banning (1928) 205 Iowa 826, 218 NW 572, 574; McCord v. Briggs & Turivas (1930) 338 Ill 158, 170 NE 320, 324; "The writ of procedendo ad justicium was the earliest remedy for the refusal or neglect of justice on the part of the court." In re Press Printers & Publishers (3rd Cir. 1926) 12 F 2d 660, 664.
§ 3.01
1 McCord v. Briggs & Turivas (1930) 338 Ill 158, 170 NE 320, 324.
2 Comyns Digest of the Laws of England (London 1824) II, 317; "Procedendo is a high prerogative writ of an extraordinary nature." State ex rel. Ratliff v. Marshall (1972) 30 Ohio St 2d 101, 282 NE 2d 582, 584; State ex rel. Wallace v. Tyack (1984) 13 Ohio St 3d 4, 469 NE 2d 844, 846.
3 In re Press Printers & Publishers (3rd Cir. 1926) 12 F 2d 660; Clark v. Clark (1925) 98 W Va 419, 127 SE 194; State v. Banning (1928) 205 Iowa 826, 218 NW 572.
4 State ex rel. Ratliff v. Marshall (1972) 30 Ohio St 2d 101, 282 NE 2d 582.
5 State ex rel. General Exchange Ins. Corp. v. Crawford (1955) 99 Ohio App 129, 131 NE 2d 661.
6 State ex rel. St. Sava v. Riley (1973) 36 Ohio St 2d 171, 305 NE 2d 808.
7 Yates v. People (1810) 6 Johns. (NY) 337, 463. State ex rel. Williams v. Ferris (1956) 102 Ohio App 412, 140 NE 2d 901, 903.
8 McCord v. Briggs & Turivas (1930) 338 Ill 158,170 NE 320, 325.
9 State v. Banning (1928) 205 Iowa 826, 218 NW 572, 574; Demstaedter v. Armour (1885) 17 Ill App 285.
10 State ex rel. Federated Department Stores v. Brown (1956) 165 Ohio St 521, 138 NE 2d 248 (addressed to officers of Workmens Compensation Commission to have them proceed with a hearing).
11 Florida Stats. Ann § 350.62.
§ 3.02
1 3 Bl. Comm. * 109; In re Press Printers & Publishers (3rd Cir. 1926) 12 F 2d 660.
2 R. v. Scaife & Others (1852) 18 Q.B. 773,118 E.R. 292; Comyns Digest of the Laws of England (London 1824) II, 317.
3 R. v. White & Perry (1886) 25 N.B.R. 483; R. v. Yee Fong (1921) 16 Alta L.R. 139, 58 D.L.R. 105; R. v. Nichols (1889) 21 N.S.R. 288.
4 R. v. Bradshaw (1876) U.C.Q.B. 564.
5 E.g. Ohio Constitution, Art. IV §2(B)(l)(e); Texas Constitution, Art. V, §3.
6 Iowa Constitution, Art. V, § 4, so construed in State v. Banning (1928) 205 Iowa 826, 218 NW 572.
7 E.g. Michigan Stats. Ann. §27A.217.
8 State v. Banning (1928) 205 Iowa 826, 218 NW 572, 574.
9 E.g. Ohio Constitution, Art. IV, § 3(B)(l)(e) (courts of appeal).
10 Roddy v. Bacon (1866) 3 Caldw. (Tenn) 253; Mallett v. Hutchinson (1858) 1 Head (Tenn) 558; McCord v. Briggs & Turivas (1930) 338 Ill 158, 170 NE 320, 325 (circuit courts).
§ 3.03
1 3 Bl. Comm. *109. McCord v. Briggs & Turivas (1930) 338 Ill 158, 1 TONE 320, 324.
2 State ex rel. Wallace v. Tyak (1984) 13 Ohio St 3d 4,469 NE 2d 844.
3 State ex rel. General Exchange Ins. Corp. v. Crawford (1955) 99 Ohio App 129, 131 NE 2d 661 (denied on facts).
4 State ex rel. Federated Dept. Stores v. Brown (1956) 165 Ohio St 521, 138 NE 2d 248.
5 R. v. Yee Fong (1921) 16 Alta L.R. 139, 58 D.L.R. 105.
§ 3.04
1 R. v. Jackson (1795) 6 T.R. 145, 101 E.R. 480; R. v. Bradshaw (1876) U.C.Q.B. 564; Yates v. People (1810) 6 Johns. (NY) 337, 384, 395, 444.
2 R. v. Higgins (1836) 5 Ad. & E. 555, 111 E.R. 1275.
3 R. v. Potter et Alios (1703) 2 Ld. Raym. 938, 92 E.R. 126.
4 R. v. White & Perry (1886) 25 N.B.R. 483, 486. Note also R. v. Flanagan (Ont. 1873) 9 C.L.J. 237 where procedendo issued when a defendant seeking certiorari had failed to move to quash his conviction.
5 R. v. Grimmer (1886) 25 N.B.R. 480; R. v. Neville (1831) 2 B. & Ad. 299, 109 E.R. 1154.
6 McCord v. Briggs & Turivas (1930) 338 Ill 158, 170 NE 320, 325.
7 Jackson v. Baxter (1880) 73 Tenn 344.
8 Kincaid v. Morris (1837) 10 Yerger (Tenn) 252; State ex rel. Davey, Governor v. Owen (1937) 133 Ohio St 96, 12 NE 2d 144; Reed v. Driscoll (1876) 84 Ill 96. Bank of Commerce v. Lesser Franklin (1899) 88 Ill App 198.
9 Exchange Mutual Fire Ins. Co. v. Warsaw-Wilkinson Co. (C.C. 3rd 1910) 181 F 330.
§ 3.05 1 R. v. Perry (1794) 5 T.R. 478, 111 E.R. 269.
2 R. v. Gwynne et al (1759) 2 Burr. 749, 97 E.R. 547.
3 State ex rel. Williams v. Ferris (1956) 102 Ohio App 412,140 NE 2d 901.
4 State ex rel. Davey v. Owen (1937) 133 Ohio St 96, 12 NE 2d 144.
§ 3.06
1 R. v. White & Perry (1886) 25 N.B.R. 483; R. v. Inhabitants of Clace in the County of Glamorgan (1769) 4 Burr. 2456, 2459, 98 E.R. 288, 289.
2 Devers v. Gavaya (1883) 16 N.S.R. 167.
3 Clark v. Clark (1925) 98 W Va 419, 127 SE 194; McCord v. Briggs & Turivas (1930) 338 Ill 158, 170 NE 320.
4 State ex rel. Wallace v. Tyak (1984) 13 Ohio St 3d 4, 469 NE 2d 844.
5 State ex rel. Federated Dept. Stores v. Brown (1956) 165 Ohio St 521, 138 NE 2d 248; State ex rel. General Exchange Ins. Corp. v. Crawford (1955) 99 Ohio App 129, 131 NE 2d 661; State ex rel. Davey v. Owen (1937) 133 Ohio St. 96, 12 NE 2d 144. State ex
rel. Wallace v. Tyak (1984) 13 Ohio St 3d 4, 469 NE 2d 844.
6 Exchange Mutual Fire Ins. Co. v. Warsaw-Wilkinson Co. (C.C. 3rd 1910) 181 F 330.
7 Reed v. Driscoll (1876) 84 Ill 96.
8 State ex rel. General Exchange Ins. Co. v. Crawford (1955) 99 Ohio App 129, 131 NE 2d 661.
9 Chicago & Rock Island Ry. v. Fell (1859) 22 Ill 333.
10 State v. Banning (1928) 205 Iowa 826, 218 NW 572, 574.
11 In re Press Printers & Publishers (3rd Cir. 1926) 12 F 2d 660, 664.
12 Nelson v. Deering Implement Co. (1950) 241 Iowa 1248, 42 NW 2d 522.
13 R. v. Nichols (1889) 21 N.S.R. 288: "no authority has been cited by defendant's counsel for the issue of a second writ of certiorari after a writ of procedendo has been awarded, nor have I been able to find any."