Oct. 11, 1862, $349. How judgment satisfied. Oct. 11, 1862, $350. Actions against 3. The certified transcript herein provided for shall not be furnished by the clerk, unless at the time an execution might issue on such judgment if the same were against a private person, nor until satisfaction of the judgment in respect to such money or damages be acknowledged as in ordinary cases. The clerk shall include in the transcript a memorandum of such acknowledgment of satisfaction and the entry thereof. Unless the transcript contain such memorandum, no order upon the treasurer shall issue thereon. § 353. [350.] An action at law may be maintained. by and against any public officer in this state in his offipublic officers. cial character, when, as to such cause of action, such officer does not represent any of the public corporations mentioned or described in section 349 [346], for any of the causes specified in such section and section 149 [147]. If judgment be given against any such officer in such action, it may be enforced against him personally, and the amount thereof shall be allowed to him in his official accounts. TITLE V. OF ACTIONS TO AVOID CHARTERS, LETTERS PATENT, AND § 355. Action against public or private corporation to be commenced on the direction of governor. § 359. Who to prosecute actions, pleadings by whom verified, how leave granted, and who deemed co-plaintiff with state. § 360. § 361. § 362. § 363. § 364. § 365. Duty of prosecuting attorney as to commencing actions. § 367. Copy of judgment roll to be filed with secretary of state. $ 351. Scire facias § 354. [351.] The writ of scire facias, the writ of quo oct. 11, 1862, warranto, and proceedings by information in the nature of quo warranto are abolished, and the remedies hereto- and quo fore obtainable under those forms may be obtained by abolished. action at law in the mode prescribed in this title. Quo warranto and scire facias. It is only the form of the remedy that is done away with by this section; the remedy stands in full virtue as before this section: See State v. Douglas Co. Road Co., 10 Or. 199, People v. Hall, 80 N. Y. 119, as to quo warranto; and Wilson v. Shively, 10 Or. 273, as to scire facias. In the last case it is said that the jurisdiction and power of courts to grant all the relief that the writ of scire facias once awarded is not touched. It is said that proceedings in the nature of a quo warranto are properly commenced in any county in the state, for the residence of the people as a party extends to every county: When under the following sections warranto 10 Or. 273. $ 352. Action against to be com direction of § 355. [352.] An action at law may be maintained Oct. 11, 1862, in the name of the state, whenever the governor thereof shall so direct, against a corporation either public or corporation private, for the purpose of avoiding the act of incorpora- menced on tion, or the act renewing or modifying its corporate ex- governor. istence, on the ground that such act or either of them was procured upon some fraudulent suggestion or concealment of a material fact by the persons incorporated, or some of them, or with their knowledge and consent; or for annulling the existence of such corporation, when the same has been formed under any general law of this state therefor, on the ground that such incorporation, or any renewal or modification thereof, was procured in like manner. $353. Action to an § 356. [353.] An action at law may be maintained oct. 11, 1862, in the name of the state against a corporation, other than a public one, on leave granted by the court or judge nul existence thereof where the action is triable, for the purpose of avoiding the charter or annulling the existence of such 10 Or. 186. corporation, whenever it shall, 1. Offend against any of the provisions of the acts, or either of them, creating, renewing, or modifying such of corporation. 10 Or. 199. Oct. 11, 1862, $353. Action to annul existence of corporation. Oct. 11, 1862, $ 354. Action for usurpation of office or franchise. 15 Or. 59. corporation, or the provisions of any general law under which it became incorporated; or, 2. Violate the provisions of any law, by which such corporation forfeits its charter, by abuse of its powers; or, 3. Whenever it has forfeited its privileges or franchises, by failure to exercise its powers; or, 4. Whenever it has done or omitted any act which amounts to a surrender of its corporate rights, privileges, and franchises; or, 5. Whenever it exercises a franchise or privilege not conferred upon it by law. Action to annul existence of corporation. —The statute in this proceeding must be strictly pursued: In re Dubois, 15 How. Pr. 7. To form foundation for a judgment for forfeiture of a franchise not originally usurped, the verdict should find not only the fact of breach of the condition of its existence, but should find the facts amounting to a breach: People v. W. T. & B. Co., 47 N. Y. 586. Leave to sue, and power of district attorney. This section requires the district attorney to obtain leave to sue, and an order refusing leave is not one from which an appeal will lie: State v. Oregon & C. R. R. Co., 2 Or. 255; but when leave has been granted, the discretionary power of the court has been expended, and the district attorney has full control of the proceeding: State v. Douglas Co. Road Co., 10 Id. 201; State v. Brown, 5 R. I. 6; and he may in his discretion discontinue the proceeding: People v. Tobacco Mfg. Co., 42 How. Pr. 162. The state may waive the forfeiture of the charter; and its power to do so, acting through its attorney, cannot be controlled by the court: Id.; State v. Douglas Co. Road Co., 10 Or. 202; People v. Fairchild, 67 N. Y. 334; State v. McConnell, 3 Lea, 339. See further, as to leave to bring action, § 359 [356], post. § 357. [354.] An action at law may be maintained in the name of the state, upon the information of the prosecuting attorney, or upon the relation of a private party against the person offending, in the following cases: 1. When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or, 2. When any public officer, civil or military, has done or suffered an act which, by the provisions of law, makes a forfeiture of his office; or, 3. When any association or number of persons act within this state, as a corporation, without being duly incorporated. Action for usurpation of office or franchise. The existence of the office claimed is necessarily involved in a proceeding of this kind, and may properly be raised: People v. Carpenter, "Office" signifies a 24 N. Y. 86. place of trust. In legal idea, an office is an entity, and may exist in fact, though it be without an incumbent. In this sense the word "office" is used in a number of instances in the constitution, and also in the statutes. An office is also defined to be a right to exercise a public function or employment, and to take the fees and emoluments belonging to it: Miller v. Supervisors etc., 25 Cal. 98; People v. The action does Stratton, 28 Id. 382. not lie against a mere employee or servant: People v. Hills, 1 Lans. 202. It was held that an information in the nature of a quo warranto was the proper proceeding to try title to an office: People v. Scannell, 7 Cal. 432; People v. Olds, 3 Id. 175; S. C., 58 Am. Dec. 398; Satterlee v. San Francisco, 23 Cal. 320; People v. Sassovich, 29 Id. 420; Hull v. Superior Court, 63 Id. 174, 179; Buckner v. Veuve, 63 Id. 304. Neither certiorari: Hull v. Superior Court, supra; nor prohibition: Buckner v. Veuve, supra, nor injunction to restrain usurpation: Palmer v. Foley, 44 How. Pr. 308; S. C., 45 Id. 110, affirmed,- is the proper remedy. Office of pilot was held to fall within the definition of "office": Palmer v. Woodbury, 14 Cal. 44. A certificate of election is only prima facie evidence of right to an office, and one who enters under such a certificate may be an "intruder" and "usurper." If he has not the right and the real title, he holds unlawfully: People v. Jones, 20 Id. 53; Magee v. Calaveras, 10 Id. 376. But one who is the actual inwhose right is cumbent of the office questioned solely on the ground of the sufficiency of his bonds-is in possession by color of right, and entitled to act as officer until his right is properly questioned by information in the nature of quo warranto: Hull v. Superior Court, 63 Id. 174. A provision for proceedings for contesting elections does not take away the right of the people in their sovereign capacity to inquire into the authority by which any person assumes to exercise the functions of a public office or franchise. The remedies are distinct: People v. Holden, 28 Cal. 129. The jurisdiction vested Oct. 11, 1862, The right to take and hold office This section makes it discretionary An This proceeding does not lie before the commencement of the term of office, for the court can only give judgment of ouster: People v. McCullough, 11 Abb. Pr., N. S., 129. action to try title to office is strictly legal in its nature, and the issues are therefore triable by a jury: People v. A. & S. R. R. Co., 57 N. Y. 161. Oct. 11, 1862, Oct. 11, 1862, § 355. Action to va The court held a complaint sufficient lawful authority: Palmer v. Wood- § 358. [355.] An action at law may be maintained in the name of the state for the purpose of vacating or cate or annul annulling letters patent issued by the state against the person to whom the same were issued, or those claiming under him, as to the subject-matter thereof, in the following cases: letters patent. 12 Or. 361. 10 Or. 273. Oct. 11, 1862, $356. Who to prosecute action. pleadings. 1. When such letters patent were issued by means of some fraudulent suggestion or concealment of a material fact by the person to whom the same were issued, or with his knowledge and consent; or, 2. When such letters patent were issued through mistake or in ignorance of a material fact; or, 3. When the patentee or those claiming under him have done or omitted an act in violation of the terms and conditions on which the letters patent were issued, or have by any other means forfeited the interest acquired under the same. § 359. [356.] The actions provided for in this title shall be commenced and prosecuted by the prosecuting attorney of the district where the same are triable. When the action is upon the relation of a private party, as allowed in section 357 [354], the pleadings on behalf of the state shall be verified by such relator as if he were the plaintiff in the action, or otherwise as provided in Verification of section 80 [79]; in all other cases such pleadings shall be verified by the prosecuting attorney in like manner, or otherwise as provided in such section. When an action can only be commenced by leave as provided in Leave to com- section 356 [353], such leave shall be granted when it appears by affidavit that the acts or omissions in such section specified have been done or suffered by such corporation. When an action is commenced on the information of a private person, as allowed in section 357 [354], having an interest in the question, such party, for all the purposes of the action, and as to the effect of any mence. Relator. |