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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 remedies—United States. 2. Habeas corpus—United 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§ 3.08 Availability where the statute creating the crime has been repealed or the statute of limitations has run............................................ 485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.lThe 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.