? People v. Bristol etc. Turnp. Co. 23 Wend. 222; and see Att.-Gen. v. Petersburg etc. R. R. Co. 6 Ired. 450; State v. Essex Bank, 8 Vt. 489; Vernon Soc. v. Hills, 6 Cowen, 23; Commonw. v. Commercial Bank, 28 Pa. St. 383.

3 Terrett v. Taylor, 9 Cranch, 43; People v. Manhattan Co. 9 Wend. 351; Reed r. Cumberland etc. Canal Corp. 65 Me. 1:2; People v. Thomp son. 21 Weud. 235; 23 id. 537; Commonw. v. Insurance Co. 5 Mass. 230; Commonw. v. Lexington etc. Turnp. Co. 6 B. Mon. 397; and see Dé Camp v. Alward, 52 Ind. 468; Re Franklin Tel. Co. 119 Mass. 447.

4 State v. Lehre, 7 Rich. 234; Smith v. State Bank, 18 Ind. 327; Terry v. Stauffer, 17 La. An. 306; Grant v. Chambers, 34 Tex. 573; Peo ple v. Scannell, 7 Cal. 432; State v. Harris, 3 Ark. 570; People v. New York, 3 Johns. Cas. 79; Matter of Hebra etc. 7 Hun, 333; Reg.v. Leeds, 11 Ad. & E. 512.

5 People v. Kip. 4 Cowen, 382 n.; Lindsey v. Att.-Gen. 33 Miss. 508; People De Mill, 15 Mich. 164; State v. Buchanan, Wright, 233; Rex t. Warlow, 2 Maule & S. 75; Miller v. English, 1 Zab. 317; Com. v. Arrison, 15 Serg. & R. 127; 16 Am. Dec. 531. But it must appear that the intruder has been in the actual possession of the office: Rex v. Whitwell, 5 Term Rep. 85; People v. McCullough, 11 Abb. Pr. N. S. 129. And quo warranto will not lie after the term of office has expired: State v. Jacobs, 17 Ohio, 143. Compare also People v. Thompson, 16 Wend. 655; Queen v. Quayle, 11 Ad. & E. 508; Queen v. Pepper, 7 id. 745. 6 Commonw. v. Graham, 64 Pa. St. 339.

7 Commonw. v. Meeser, 44 Pa. St. 341.

8 People v. Utica Ins. Co. 15 Johns. 358; 8 Am. Dec. 243. See also State v. Kill Buck Turnp. Co. 38 Ind. 71.

9 People v. Tibbetts, 4 Cowen, 358.

10 People v. Geneva College, 5 Wend. 211.

11 People v. Bartlett, 6 Wend. 422.

12 Renwick v. Hall, 84 Ill. 162; and compare State v. Independent School District, 29 Iowa, 264.

13 People v. Carpenter, 24 N. Y. 86; and compare State v. Coffee, 59 Mo. 59.

14 Cochran v. McLeary, 22 Iowa, 75.

§ 163. When quo warranto does not lie.-Quo warranto will not lie against one claiming office in a supposed corporation, where no corporation in fact exists; 1 nor will it lie against an officer of a private corporation, who is a mere servant or agent, holding at the will of the directors; nor will it be allowed to try the title to an office, merely because of an irregularity in the election, in the absence of bad faith, and where the result of the election has not been affected.3 And it will not lie because of the use by a corporation of an abbreviation of its corporate name. An information in the nature of quo warranto will not lie against a corporation for taking land without making compensation, as provided by stat

ute; nor will it lie to annul a city ordinance passed in the irregular and improper exercise of a power conferred by law; nor to declare the election of persons as directors who received a minority of the votes cast, although it appear that the judges improperly rejected sufficient legal votes offered to give a majority. In England, if the franchise in no way concerns the public, the information will be denied.8

1 State v. Lehre, 7 Rich. 234; and see People v. Thompson, 16 Wend. 6.5.

2 People v. Hills, 1 Lans. 202; and see Darby v. The Queen, 12 Clark & F. 520.

3 Queen v. Ward, Law R. 8 Q. B. 210; Reg. v. Collins, 23 Week. R. 325; and compare State v. Tolan, 33 N. J. L. 195.

4 People v. Bogart, 45 Cal. 73.

5 People v. Turnpike Co. 2 Johns. 190; and compare People v. Whitcomb, 55 Ill. 172; State v. Kingan, 51 Ind. 142; State v. Shields, 56 1d. 521.

6 State v. City of Lyons, 31 Iowa, 432.

7 State v. McDaniel, 22 Ohio St. 354. Compare State v. Marston. 6 Kan. 524; Pitts r. Bonner, 7 Ga. 449; People v. Van Slyck, 4 Cowp. 297; People v. Holden, 28 Cal. 123; State v. Marlow, 15 Ohio St. 114.

8 Rex v. Shepherd, 4 Term Rep. 381; Rex v. Dawbeny, 2 Strange, 1196; Reg. v. Mousley, 8 Ad. & E. 957.

§ 164. Who may institute quo warranto proceedings. If the injury is one that affects the whole community alike, the proceedings are to be instituted by the state, through its appointed agencies.1 Thus, if it is sought to arrest a usurpation of the franchise of a municipal corporation, the right to file an information is in the state, and the institution of the proceedings is a matter in the discretion of the attorney-general; 2 and private individuals who have no interest other than as citizens, residents, and tax-payers, cannot maintain the proceedings against such corporation. So, individuals may not file, even by leave of court, a writ of quo warranto to dissolve a corporation. But as it respects the administration of corporate functions, or duties touching mere individual rights, such as the election or admission of a corporate oficer or member, the writ may issue either at the suit of the attorney-general, or of any person interested in prose

+

cuting the writ.5 Persons claiming different offices cannot, however, unite as relators in the same quo warranto proceeding, to test thereby their rights to the respective offices against adverse parties. In early practice, the court always exercised a sound discretion in granting or withholding leave to file an information in the nature of a quo warranto; and in modern practice, it is still necessary to apply for leave to file such an information, when the relator is a private person.8 In such case it is within the discretion of the court to grant or refuse the writ, according to circumstances; if the circumstances are such as tend to throw suspicion on the motives of the relator, the court will require additional affidavits, or will refuse the application, if the consequence will be to dissolve the corporation.10 But the attorney-general may, of his own authority, and without application for leave of court, file an information cx officio,11 either against persons assuming to act as a corporation, to compel them to show title to the franchise,12 or against an individual in possession of a corporate office, to compel him to show his right.18 If the information by the attorney-general states that it was filed at the relation of any one, the statement will be regarded as surplusage, and will not vitiate the proceeding.14 In New York, in an action in the nature of a quo warranto, brought by the attorney-general against a usurper, the name of the relator who claims the office should be joined as plaintiff.15 Where a statutory provision allows a proceeding by information for the unlaw ful exercise of a franchise, such information can be filed only by the prosecuting attorney, or by a person, on his own relation, who has an interest in the franchise; 16 the remedy of a person not interested, if any he has, is by injunction.17

1

Commonw.v. Farmers' Bank, 2 Grant Cas. 392; Miller v. Palermo, 12 Kan. 14; State v. Smith, 32 Ind. 213; Voisin v. Léche, 23 La. An. 25. 2 Robinson v. Jones, 14 Fla. 256.

3

Robinson v. Jones, 14 Fla. 256; and see Commonw. v. Phila. etc. R. R. Co. 20 Pa. St. 518; Wright v. People, 15 Ill. 417.

4 State v. Paterson etc. Turnp. Co. 1 Zab. 9; President etc. v. McConaby, 16 Serg. & R. 144; Houston v. Neuse River Nav. Co. 8Jones, (N. C.) 476; Rex v. Ogden, 10 Barn. & C. 230; Commonw. v. Burrell,7 Pa. St. 34. Compare Boston etc. R. R. Co. v. Midland R. R. Co. 1 Gray,

340.

5 Murphy v. Farmers' Bank, 20 Pa. St. 415; State v. Commercial Bank, 6 Siedes & M. 218; Commonw. v. Insurance Co. 5 Mass. 250; Parker v. Smith, 3 Minn. 240; State v. Paterson etc. Turnp. Co. Í Zab. 9.

6 People v. DeMill, 15 Mich. 164. Compare Rex v. Warlow, 2 Maule & S. 75.

7 People v. Sweeting, 2 Johns. 184; Rex v. Sargent, 5 Term Rep. 467; People v. Waite, 70 Ill. 25; Commonw. v. Reigert, 14 Serg. & R.

216.

8 People v. Tisdale, 1 Doug. (Mich.) 59; Respublica v. Griffiths, 2 Dall. 112; Commonw. v. Arrison, 15 Serg. & R. 127; 16 Am. Dec. 531.

9 State v. Brown, 5 R. I. 1; Commonw. v. Jones, 12 Pa. St. 365; People v. Hillsdale etc. Turnp. Co. 2 Johns. 150; State v. Tolan, 33 N. J. L. 165; State v. Smith, 48 Vt. 266.

10 Rex v. Trevenen, 2 Barn. & Ald. 479; and see Rex v. Paine, ? Chit. 369; Reg. v. Anderson, 2 Ad. & E. N. S. 740; Miller v. English, I Zab. 217.

11 Rex v. Trevenen, 2 Barn. & Ald. 482; Rex v. Ogden. 10 Barn. & C. 230; State v. Gleason, 12 Fla. 190; Att.-Gen. r. Delaware etc. R. R. Co. 38 N. J. L. 282. Compare Commonw. v. Cluly, 56 Pa. St. 270.

12 King v. Trevenen, 2 Barn. & Ald. 482; People v. Utica Ins. Co. 15 Johns. 358; King v. Clarke, 1 East, 38, 43; People v. Bank of Niagara, 6 Cowen, 196. Compare Rexr. Corp. of Carmarthen, 2 Burr. 1869; People v. Albany etc. R. R. Co. 7 Abb. Pr. N. S. 265; 55 Barb. 344; 38 How. Pr.

228.

13 King v. Trevenen, 2 Barn. & Ald. 482; and compare People v. Pratt, 15 Mich. 184; Patterson v. Hubbs, 65 Nó. Car. 119.

14 State v. City Council, Mill. Const. 36; and see People v. Knight, 14 Mich. 230; Commonw. v. Fowler, 10 Mass. 290.

15 People v. Ryder, 12 N. Y. 433; People v. Walker, 2 Abb. Pr. 421; 23 Barb. 304.

16 Miller v. Palermo, 12 Kan. 14; State v. Smith, 32 Ind. 213; and see Yonkey v. State, 27 lud. 236; State v. Boal, 46 Mo. 528.

17 State v. Smith, 32 Ind. 213.

§ 165. Against whom quo warranto should be brought.-A proceeding in quo warranto to procure the dissolution of a corporation, or to restrain it from the exercise of some franchise which it usurps, or to enforce a forfeiture which it is alleged to have incurred,2 is properly filed against the corporate body in its corporate name,3 and not merely against the individual members.4 But when the proceeding is instituted to oust defendants from acting as a corporation, and to inquire whether a corporation has been legally organized ete the information should

Case

be filed against the individuals.5 An information against the company, by its corporate name, admits its existence as a corporation."

1 People v. Bristol, etc. Turnp. Co. 23 Wend. 222; State v. Coffee, 59 Mo. 56.

2 People v. Bank of Hudson, 6 Cowen, 217; State v. Barron, 57 N. H.498.

3 People v. Bank of Hudson, 6 Cowen, 217.

4 State v. Taylor, 25 Ohio St. 280.

5 People v. Saratoga etc. R. R. Co. 15 Wend. 113; State v. Cincin⚫ nati Gas Light Co. 13 Öhio St. 262.

6 People v. Saratoga etc. R. R. Co. 15 Wend. 113; Mud Creek Draining Co. v. State, 43 Ind. 236.

§ 166. Defenses to quo warranto proceedings. To an information in the nature of quo warranto, the defendant may set up as many defenses as he has.1 A plea which sets forth the charter shows a prima facie defense to an information to dissolve a corporation.2 The time within which the information would lie, at common law, was fixed at twenty years, beyond which the court would not disturb a peaceable possession of a franchise; 3 and in every case within twenty years, whether the information would be granted or refused was discretionary with the court, under the particular circumstances of the case. The period of limitation has, in some cases, been fixed by statute; but in the absence of a statutory provision, lapse of time is no bar to an information when filed by the attorney-general. An action in the nature of a quo warranto will not lie to try the title to an office before the commencement of the term of office; nor will the court allow an information to be filed against an officer whose term of office will expire before the case can be tried; and an information to oust will not be granted until an actual amotion from office has been made.9 Upon an information in the nature of quo warranto, the state is not bound to show anything, and the defendant must either disclaim or justify. 10 The justification should be set up by plea and not by answer,11 and his plea must show all the facts necessary to establish the lawful right