QUO WARRANTO.

14. When defendant may take defence after judgment by default.

15. Writ of error allowed. Execution may be awarded notwithstanding.

16. Returnable forthwith. To be decided at the first term.

17. Act not to bar prosecutions.

18. When other parties may be substituted.

19. Court may decide who is entitled to the office; or order new election.

20. In case of ouster, trustees may be appointed. 21. Jurisdiction of the supreme court enlarged. How issues of fact to be tried.

22. On judgment of ouster, officers to hold in

trust.

23. When receiver may be appointed.
24. To apply to prior cases of ouster.

1. Writs of quo warranto may(v) be issued by the supreme court, in the form and manner hereafter provided, in all cases in which the writ of quo warranto, at common law, may have been issued, and in which the said court has heretofore possessed the power of granting informations, in nature of such writ.(w) 2. Writs of quo warranto, in the form and manner hereinafter provided, may also be issued by the several courts of common pleas, concurrently with the supreme court, in the following cases, to wit:(x)

I. In case any person shall usurp, intrude into or unlawfully hold or exercise any county or township office within the respective county. (y)

I In case any person, duly elected or appointed to any such office, shall have done, suffered or omitted to do, any act, matter or thing, whereby a forfeiture of his office shall by law be created.(z)

III. In case any question shall arise concerning the exercise of any office, in any corporation, created by authority of law, and having the chief place of business within the respective county:(a)

14 June 1886 § 1.

P. L. 621.

Jurisdiction of

supreme court. Ibid. § 2.

Jurisdiction of the common pleas.

such writs may

And in any such case, the writ aforesaid may be issued, upon the suggestion of At whose instance the attorney-general, or his deputy, in the respective county, or of any person or issue. persons desiring to prosecute the same.(b)

IV. In case any association, or number of persons, shall act as a corporation or shall exercise any of the franchises or privileges of a corporation, within the respective county, without lawful authority.

V. In case any corporation as aforesaid shall forfeit, by misuser or non-user, its corporate rights, privileges or franchises, or shall do, suffer or omit to do, any act,

(v) A writ of quo warranto cannot be issued, without a previous rule to show cause. Commonwealth v. Jones, 12 P. S. 365. Except where the attorneygeneral is the relator. Commonwealth v. Bank of America, 10 Phila. 156. Commonwealth v. Walter, 83 P. S. 105. Commonwealth v. Dinly, 3 W. N. C. 133; or the district-attorney. Gelroy v. Commonwealth,

41 L. I. 320.

(w) See Commonwealth v. Dumbauld, 97 P. S. 293. It may issue to inquire into the right of a person to hold an office in the militia. Commonwealth v. Small, 26 P. S. 31. And against persons acting as trustees of an incorporated church. Commonwealth v. Arrison, 15 S. & R. 127. Commonwealth v. Graham, 64 P. S. 339. And see Commonwealth v. Shoener, 1 Leg. Chron. 177. The act 7 April 1870, (tit. "Public Accounts") confers the like jurisdiction upon the common pleas of Dauphin county, in all cases where the commonwealth is the real plaintiff. Commonwealth v. Railroad Co., 14 W. N. Č. 60.

(z) The jurisdiction of the common pleas is entirely statutory; this act does not give authority to try the right of membership in the Soldiers' Orphans' School Commission or to determine whether such a membership to be an office or not. The supreme court has original jurisdiction under the constitution to try the title to an office whose jurisdiction extends over the state. Commonwealth v. Skinner, 14 C. C. 347.

(y) An associate judge of the court of common pleas is not such county officer. Lieb v. Commonwealth, 9 W. 200. The writ of quo warranto against a county officer can only issue on the suggestion of a party having an interest to be affected. Common

wealth v. Cluley, 56 P. S. 270. It will not lie against an officer elect, until he has entered upon the discharge of the duties of the office. People v. McCullough, 11 Abb. Pr. (N. S.) 129. See Philips v. Commonwealth, 98 P. S. 394.

(z) The courts of common pleas have no jurisdiction in quo warranto, to oust a county officer for an abuse of the powers of his office, not amounting to a cause of forfeiture. Cleaver v. Commonwealth, 34 P. S. 283.

(a) This is the proper remedy for contesting the election of an officer of a corporation in the absence of allegations of fraud, violence or unlawful conduct. Jenkins v. Baxter, 34 W. N. C. 114.

(b) A writ of quo warranto does not lie, except at the suggestion of the attorney-general, against one holding the office of judge of a court of common pleas. This remedy, at the suggestion of an individual. is confined to the specified cases, which are in the nature of private injuries; in other cases, as where a franchise of the commonwealth is usurped, or an office held, which can only be legally filled by appointment of the governor or the election of the people, the remedy is exclusively on the suggestion of the attorney-general; nor can an individual use the name of the attorney-general, on his own motion. Commonwealth v. Burrell, 7 P. S. 34. Clark v. Commonwealth, 29 Ibid. 129. And see Commonwealth v. Wisler, 11 W. N. C. 513. Commonwealth v. Horne, 10 Phila. 164. Commonwealth v. Bumm, Ibid. 162. Commonwealth v. Stevens, 6 Luz. L. Reg. 37. A suggestion on behalf of the commonwealth need not be sworn to. Commonwealth v. Philadelphia and Reading Railroad Co., 3 Leg. Gaz. 371.

P. L. 621.

14 June 1886 § 2. matter or thing, whereby a forfeiture thereof shall by law be created, or shall exercise any power, privilege or franchise not granted or appertaining to such corporation.

And in any such case, the writ aforesaid may be issued upon the suggestion of the attorney-general, or his deputy, in the respective county, or of any person or persons desiring to prosecute the same. (c)

3. Whenever the attorney-general(d) shall have reason to believe that any association as aforesaid have acted as a corporation, or exercised any of the franchises or privileges thereof, without lawful authority, or that any corporation has forfeited its corporate rights, privileges or franchises, as aforesaid, or exercised any power, privilege or franchise, not granted or appertaining to such corporation, it shall be his duty to file, or cause to be filed, a suggestion as aforesaid, and to proceed thereon for the determination of the matter.

on the

court

so that
in and for the

or to

county of
[or county of] the liber-

or otherwise, as the

4. Writs of quo warranto shall be in the following form, to wit: County, ss. The Commonwealth of Pennsylvania: To the sheriff of said county, greeting: We command you that you summon be and appear before our to be holden at day of next, and then and there to show by what authority claim to exercise the office of in the show by what authority he or they exercise within the said county ties and franchises following, to wit: [setting them forth case may be,] and have you then there this writ: Witness, &c. 5. The writ aforesaid, may be issued out of the supreme court, with the leave of the said court, in term-time, or of any judge of the said court, in vacation; and out of the respective court of common pleas, with the leave of the said court, in term-time, or of the president judge thereof, in vacation; and such writ may be made returnable at any time within term, at the discretion of the court or judge granting the same.

6. The writ aforesaid, shall be served at least ten days before the return-day, in the same manner as a writ of summons in a personal action; and if the party against whom such writ shall be issued shall not appear, judgment by default may be taken, without further process, in the manner allowed in a personal

action.

7. Every suggestion as aforesaid, shall set forth the facts as fully as has heretofore been required, in informations aforesaid; it will be verified by affidavit, and filed of record in the cause; and in every case, the name of the person at whose instance the writ shall issue, shall be indorsed thereon.

8. If it shall appear to the court or judge as aforesaid, that the several rights of different persons may be properly determined by one writ, it shall be lawful for such court or such judge to make such order or orders, for the introduction or addition of such persons into the writ, or for notice to such persons to appear and take defence, as shall be reasonable and just.(e)

9. The defendant in such writ shall answer, plead or demur to the suggestion filed as aforesaid; he may traverse all or any of the material facts contained therein, as in other cases; and the person or persons at whose instance such writ shall have been issued, shall reply, take issue or demur, and thereupon issue shall be joined in due course, as in other cases; (g) and the court shall make such orders from time to time, in respect to such pleadings, as shall expedite the decision of the cause, consistently with reasonable convenience to the parties.

10. Whenever any issue of fact shall be joined upon any(h) writ of quo warranto as aforesaid, issued by the supreme court in any district, it shall be lawful for the said court, by an order to be made in the cause, to direct such issue to be tried in the court of common pleas of the county in which the matters complained of took place, or, upon cause shown, in any other county of such district; and thereupon, a copy of the proceedings in such cause shall be certified to the said court of common pleas, and such issue shall be determined in like manner as issues of fact in causes originating in such court; and when judgments shall be rendered upon such issue in the said court of common pleas, the same shall be certified to the supreme court, who shall proceed thereupon to the final adjudication of the cause.

(c) A stranger who has no interest in a corporation, except that which is common to every citizen, cannot sue out a writ of quo warranto to enforce the forfeiture of a charter. The words " any person desiring to prosecute the same," are construed to mean any person having an interest to be affected or suffering a wrong to be redressed. Commonwealth V. Allegheny Bridge Co., 20 P. S. 185. Murphy v. Farmers' Bank, Ibid. 415. Commonwealth v. Philadelphia, Germantown and Norristown Railway Co., 20 Ibid. 518. Commonwealth v. Farmers' Bank, 2 Gr. 392. Commonwealth v. Philadelphia and Chester County Railroad Co., 10 W. N. C. 400.

(d) The power of the attorney-general to institute proceedings under this section, is not taken away by

the act relating to district-attorneys. Commonwealth v. Commercial Bank, 28 P. S. 391.

(e) Under this section, the court may make an order for service on persons residing in another state. Commonwealth v. Dillon, 61 P. S. 488. It must be served in the same manner as a summons. Commonwealth v. Quin, 1 W. N. C. 313.

(g) This does not alter the rules of pleading in cases of quo warranto; the information may either disclose the specific ground of forfeiture, or merely set forth the franchises alleged to have been illegally exercised, and call upon the defendant to show by what authority they are held. Commonwealth v. Commercial Bank, 28 P. S. 383. See Commonwealth v. Walter, 86 P. S. 15.

(h) Partially supplied, infra 21.

QUO WARRANTO.

P. L. 621.

11. If the defendant in any quo warranto, as aforesaid, whether a natural person 14 June 1836 § 11. or persons, or a corporation, be found or adjudged guilty of usurping or intruding into, or unlawfully holding or exercising the office, franchise, privilege or power Judgment against mentioned in such writ, the court shall give judgment that such defendant be defendants. ousted, and altogether excluded from such office, franchise, privilege or power, and that the commonwealth, or party, suing the writ, as the case may be, recover costs Costs. from the defendant.

Ibid. § 12.

Judgment for de

12. If judgment be given for the defendant in any such writ, and the proceedings have been instituted on the relation of any private prosecutor, the court shall also give judgment, that the defendant recover his costs of such relator, to be fendant. levied by execution, as in cases of debt; if the proceedings have been instituted by the attorney-general, at his own instance, it shall be lawful for the court, in their discretion, on giving judgment for the defendant, to order that the costs be paid by the county in which the matters complained of were alleged to have taken place.

Costs.

Ibid. § 18.

Ibid. § 14.

13. If judgment of ouster and exclusion, as aforesaid, be given against any defendant, execution thereof shall be had by a writ of injunction, (i) which shall Execution to be by be awarded by the court against such defendant, whether a natural person or per- injunction. sons, or a corporation; such injunction shall recite the judgment of the court, and shall enjoin the defendant or defendants from exercising the office, franchise, privilege or power mentioned therein; and obedience thereto may be compelled by attachment(k) and sequestration, (1) in like manner as in other cases of injunction. 14. If such injunction shall have been issued upon a judgment rendered by default, as aforesaid, the defendant therein may, nevertheless, upon the payment of When defendant costs, and reasonable notice to the adverse party, and such other terms as the court may take defence shall deem equitable, plead to the suggestions as aforesaid, and thereupon the after judgment by parties shall proceed to issue and trial, in like manner as if the defendant had appeared at the return of the writ, and had pleaded in due course; and if judgment shall be rendered in favor of such defendant, the judgment by default shall be taken off, and the injunction aforesaid shall thenceforth be dissolved.

default.

Ibid. § 15.

15. It shall be lawful for any person aggrieved by the judgment of any court of common pleas, fpon any writ of quo warranto as aforesaid, to remove the same writ of error by writ of error, into the supreme court for the proper district; (m) but it shall be allowed. lawful for the court to which such writ of error shall be directed, to award execution as aforesaid, notwithstanding such writ of error, if, in the discretion of the awarded. court, the case shall appear to require it.

16. Every such writ of error may be made returnable forthwith, if the supreme court shall be in session in the proper district; and shall be heard and decided by the judges thereof, at the term to which it is returnable.(n)

Execution may be

Ibid. § 16.

the first term.
Ibid. § 17.

To be decided at

Act not to bar
prosecutions.

P. L. 323.
When other par-

17. Provided, That nothing herein contained shall debar any prosecution for breach of an act of assembly in relation to corporations, corporate or other officers, or persons acting as corporations without lawful authority. 18. It shall be lawful for any court within this commonwealth, in which any 18 April 1840 § 12. trial or question arising on a writ of quo warranto is or may hereafter be pending, on the expiration of the term of office, or the resignation of the relator or relators, or person or persons against whom the same has or may have issued, if said court ties may be subshall be of opinion that the attainment of substantial justice, and the trial of the stituted. rights in question, requires the substitution of the person or officer elected or appointed to fill the place of such relator or relators, defendant or defendants, to order and decree that the person or persons so elected or appointed shall be substituted in the room or stead of the person or persons so resigning, or whose term of office has expired, and direct such notice to be served on the person or persons so substituted, as to said court shall seem just and reasonable; after which the cause shall proceed to final hearing and adjudication, in the manner as though no change had taken place.

Ibid. § 13.

Court may decide

19. In all questions arising on writs of quo warranto between persons claiming to be duly elected to fill any office, it shall be lawful for the court trying the same to decide both on the legality of the election of the party claiming said office, as who is entitled to also of the party in possession of the same, and if judgment of ouster is given the office. against the party in possession, said court may decree that the office shall be held by the person or persons who they shall be of opinion is duly elected; (0) and after judgment of ouster, when it cannot be ascertained who is duly elected, said Or order new court may order a new election to fill said office, (p) to be held at such times there- election. after as shall be appointed by such court.

(2) An injunction issued under this section, may, in a proper case, be enforced by a writ of assistance. Commonwealth v. Dieffenbach, 3 Gr. 368. (k) Under such attachment, the defendant may be imprisoned until he submit. Commonwealth v. Small, 26 P. S. 42.

(7) Under such writ of sequestration, all the defendant's property and effects may be taken into the custody of the state until he submit himself to

the decree of the court. Commonwealth v. Small, 26
P. S. 42.

(m) A writ of error does not lie to the refusal to
Commonwealth v.
grant a writ of quo warranto.
Davis, 109 P. S. 128.

(n) See Commonwealth v. Sparks, 6 Wh. 416.
(0) This can only be done by final decree.
monwealth v. Sparks, 6 Wh. 416.

Com

(p) It seems, that this extends to an office in the militia. Commonwealth v. Small, 26 P. S. 36.

1

18 April 1840 § 14. P. L. 328.

In cases of ouster,

trustees may be appointed.

17 March 1853 § 2. P. L. 685.

20. When the persons claiming to be officers of any corporation shall be ousted by the judgment of any court, on a writ of quo warranto, it shall be lawful for said court to appoint not less than three nor more than nine trustees to take charge of said corporation, who shall be selected and chosen by the said court, out of such persons as are, by the charter of said corporation, competent to be elected officers thereof; and said trustees so appointed shall exercise and perform all the duties of officers of the said corporation, until others shall be elected in their stead, pursuant to the law regulating said corporation, or the order of court, where there is no sufficient law providing for the same.

21. In all proceedings by quo warranto, whether at the suggestion of the attorney-general or any person or persons desiring to prosecute the same, (q) Jurisdiction of the against any association or any number of persons who shall act as a corporation, supreme court en- or shall exercise any of the franchises or privileges of a corporation without lawlarged. ful authority, or against any corporation which shall forfeit, by misuser or non-user, its corporate rights, privileges or franchises, or shall do, suffer or omit to do, any act, matter or thing whereby a forfeiture thereof shall by law be created, whether the said forfeiture may be declared by the legislature or otherwise, or shall exercise any power, privilege or franchise not granted or appertaining to such corporation, the suggestion may be filed and all proceedings had in the supreme court, wherever the same may be sitting; and any questions of fact on which an issue How issues of fact may be ordered shall be tried before a judge of the supreme court and by a jury summoned from any county in which the supreme court shall be sitting at the time of such trial; and proceedings commenced or prosecuted in any district shall be certified to any other district, as may be requisite for the speedy determination thereof.

to be tried.

4 April 1872 § 1. P. L. 46.

On judgment of

22. Whenever any corporation, incorporated under the laws of this commonwealth, shall have been dissolved by judgment of ouster, upon proceedings of quo warranto in any court of competent jurisdiction, all the estate, both real and ouster, officers to personal, of which such corporation are in any way seised or possessed, shall pass to and vest in the person who at the time of such dissolution are the officers of such corporation, in trust to hold the same for the benefit of the stockholders and creditors of the corporation.

hold in trust.

Ibid. § 2. When receiver

23. The supreme court, or any judge thereof sitting at nisi prius, shall, upon the petition of any stockholder or creditor of such corporation, appoint a receiver may be appointed. Who shall have all the powers of a receiver appointed by a court of chancery, to take possession of all the estate, both real and personal, thereof, and make distribution of the assets among the persons entitled to receive the same according to law : Provided, That written notice, as may be directed by the court, shall be given to the persons, or a majority of them, who were at the time of the dissolution officers of the corporation, of the intention, time and place of presenting such petition: And provided further, That it shall be the duty of such receiver to give notice of his appointment, time and place of meeting, to all the stockholders of such corporation, and to advertise the same as the court may direct.

Ibid. § 3.

24. The provisions of this act shall also apply to any corporation that has been heretofore dissolved by judgment of ouster upon proceedings of quo warranto, To apply to prior in any court of competent jurisdiction, the affairs of which have not been settled and adjusted.

cases ouster.

RACE AND COLOR.

See CRIMES; ELECTIONS; MUNICIPAL CORPORATIONS - FIRST CLASS; RAILROADS.

RACING.

See CRIMES; HORSE-RACING.

RAILROAD EMPLOYÉS.

See CRIMES; RAILROADS.

(q) This does not enlarge the right of a private relator to sue out a quo warranto, where he has no interest except that which is common to every citizen.

Commonwealth v. Farmers' Bank, 2 Gr. 392. Commonwealth v. Horne, 10 Phila. 164.

RAILROADS.

See COMMON CARRIERS; COUNTIES AND TOWNSHIPS; CRIMES; MOTOR-POWER COMPANIES.