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§ 3.08 Availability where the statute creating the crime has been repealed or the statute of limitations has run............................................ 485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 note