done under the act of incorporation, or the general statutes as to railways, applies to things done wholly without the jurisdiction conferred.2

*SECTION III.

Jurisdiction and Mode of Procedure.

1. Lies in cases of irregularity, unless taken | 3. Granting the writ is matter of discretion. away by statute. Defects not amendable.

2. Inquisitions before officers, not known in

the law.

§ 203. 1. Although it is held that a statutory provision, denying the certiorari, is to be limited to matters within the jurisdiction conferred, and will not restrict the power of the court in regard to matters wholly beyond the jurisdiction, the same rule cannot be extended to mere irregularity in the exercise of the jurisdiction. For unless the prohibition of the writ could apply to such cases, it could have no application, and it is incumbent upon the court to give it a reasonable operation and construction.1

2. An inquisition taken before two under-sheriffs extraordinary, will be set aside on that ground. But an inquisition taken before a clerk of the under-sheriff, and an assessor appointed pro hac vice by the sheriff, although none of the persons named in the act, for such an office, will not be quashed on certiorari.3

2 Ante, § 201; Reg. v. Sheffield, A. & M. Railw., 1 Railw. C. 545; South Wales Railw. v. Richards, 6 Railw. C. 197; Reg. v. Lancashire & Preston Railw., 6 Q. B. 759; 3 Railw. C. 725. Where a jury, summoned under 8 & 9 Victoria, ch. 18, § 68, have taken into consideration, in awarding compensation, one claim, among others, as to which they had no jurisdiction, a certiorari lies, although such excess of jurisdiction does not appear upon the face of the proceedings, but it may be shown by affidavit. Penny in re, 7 Ellis & Bl. 660.

Reg. v. Sheffield, A. & M. Railw., 1 Railw. C. 537; 11 Ad. & E. 194.

2 Denny v. Trapnell, 2 Wilson, 379. This decision is upon the ground that the sheriff can only appoint one under-sheriff extraordinary.

8

Reg. v. Sheffield, A. & M. Railw., 11 Ad. & Ellis, 194. Thus showing the disposition of the court to sustain the proceedings when not in contravention of the express terms of the statute.

3. The granting of the certiorari is matter of discretion, although there are fatal defects on the face of the proceedings, which it is sought to bring up.5 The affidavits should swear positively and specifically to the existence of the defects relied upon. And where the party applying for the writ fails, from incompleteness in the affidavits, he will not have a certiorari granted him, upon fresh affidavits supplying the defects.5 The conduct of the prosecutor, especially if it had a tendency to induce the defects complained of, is important to be considered in determining the question of discretion, in regard to issuing the writ.6

* State v. Hudson, 5 Dutch. 115; Lantis in re, 9 Mich. R. 324; People v. Board of Health, 33 Barb. 344; Johnson v. McKissack, 20 Texas R. 160; People v. Peabody, 26 Barb. 437; Randle v. Williams, 18 Arkansas R. 380; Mayo County in re, 14 Ir. Com. Law Rep. 392; Reg. v. Reynolds, 13 W. R. 925; s. c. 12 L. T. N. S. 580.

Reg. v. Manchester & Leeds Railw., 8 Ad. & Ellis, 413. Lord Denman says, "I disclaim the principle, that we are to issue a certiorari to bring up the inquisition, on the ground that there may probably be defects; we must clearly see that facts do exist which will bring the defects before us." And an individual member of a corporation cannot carry on suit by bringing certiorari in the name of the corporation without the consent of a legal majority of the members thereof. Silk Manufacturing Co. v. Campbell, 3 Dutcher, 539.

Reg. v. South Holland Drainage, 8 Ad. & E. 429.

*CHAPTER XXVIII.

INFORMATIONS IN THE NATURE OF QUO WARRANTO.

1. General nature of the remedy.

8. Form of the judgment.

2. Its exercise confined to the highest court of 9. Rules in regard to taxing costs.

ordinary civil jurisdiction.

3. In the English practice, this remedy not extended to private corporations.

4. In this country it has been extended to such corporations.

5. This remedy will only remove an usurper, but not restore the one rightfully entitled. 6. Will not lie where railway company open part of their road.

7. Nor where company issue stock below par,
or begin to build road before subscription 14.
full.

Scire facias the proper remedy to determine forfeiture.

Insufficient excuses for failure to repair a turnpike road.

§ 204. 1. THIS is a subject of very extensive application to corporations, for the purpose of determining when they have forfeited their corporate franchises, or usurped those not rightfully belonging to them, and for numerous other purposes.1 It will be found treated very much at length in treatises upon corporations.2 We should scarcely feel justified in going into the subject further here than it has a special application to railways. The form of the proceedings in modern times is by information of the attorney-general, or other public prosecuting officer, on behalf of

1 See Palmer v. Woodbury, 14 Cal. R. 43; Gano v. State, 10 Ohio St. 237; Parker v. Smith, 3 Minn. R. 240; Cleaver v. Commonwealth, 34 Penn. St. 283; People v. Ridgely, 21 Ill. R. 65; Scott v. Clark, 1 Clarke, 70; Mississippi, &c. Railw. v. Cross, 20 Ark. R. 443, 495.

Angell & Ames on Corporations, § 731-765. See State v. Mississippi, &c. Railw., 20 Ark. R. 443, 495; State v. Brown, 5 Rhode Island R. 1; Lindsey v. Attorney-General, 33 Miss. R. 508. The information may set forth specifically the ground of forfeiture relied upon, or may call upon the corporation to show by what warrant they still claim to exercise their corporate franchises ; and the information, like any other criminal information, is regarded as amendable. Commonwealth v. Commercial Bank, 28 Penn. St. 383. And the information must acquaint the court with the charter of the company, so as to show its powers and duties. Danville, &c. Co. v. State, 16 Ind. R. 456.

the state, or sovereignty, in the nature of a quo warranto, upon which a rule issues to the defendant to show by what warrant he exercises the function or franchise called in question. These proceedings are now very much controlled in England and in the American states by statute defining the form of process and the jurisdiction of the courts in regard to them.

2. In the absence of special provisions, the highest courts of ordinary civil jurisdiction are accustomed to exercise the prerogative right of sovereignty, to issue this process, as well as other prerogative writs, such as a mandamus, certiorari, procedendo, prohibition, &c. In some of the states the courts refuse to exercise any such prerogative rights. And in others this power is, by statute, conferred upon the Court of Chancery; but in other forms.5

4

3. The English courts do not seem to have allowed the exercise of this proceeding in the case of mere private corporations, although there are numerous cases in the English books of its exercise in regard to municipal corporations, and others of an important public character.

6

State v. Ashley, 1 Pike (Ark.), 279; State v. Turk, Mart. & Yerg. 287; Attorney-General v. Leaf, 9 Humph. 753. See also State v. Merry, 3 Missouri R. 278; State v. McBride, 4 Id. 303; State v. St. Louis P. M. & Life Ins. Co., 8 Id. 330, where in the latter state it was held the writ should issue.

In Pennsylvania the Supreme Court has authority to try by mandamus or quo warranto whether or not a contract entered into between two different corporations is in excess of the lawful powers of either, and if either corporation is exercising rights or franchises to which it is not entitled, then to oust it therefrom ; and the proceeding may be either at common law or in equity, provided the right of trial by jury is not interfered with. Commonwealth v. Delaware & Hudson Canal Co., 43 Penn. St. 295.

• State v. Turk, Mart. & Yerg. 287; State v. Merchants' Ins. Co., 8 Humph. 253; Attorney-General v. Leaf, 9 Id. 753.

• Rex v. Williams, 1 Bur. 402; Rex v. Breton, 4 Burrow, 2260; Rex v. Highmore, 5 Barn. & Ald. 771; Rex v. M’Kay, 4 B. & C. 351; Smyth ex parte, 11 W. R. 754; s. c. 8 L. T. N. S. 458; Reg. v. Hampton, 13 L. T. N. S. 431. The same rule obtains in regard to this proceeding in this respect in England as to mandamus.

Ante, § 193; Rex v. Sir Wm. Lowther, 1 Strange, 637; Rex v. Mousley, 8 Ad. & Ellis, N. s. 957, decided in 1846, where it is held that the mastership of a hospital or a grammar school was not of so public a character as to justify the

4. But there is no question that in the American states this form of proceeding is extended to aggregate corporations in general, and more especially to the case of banks and railways, which partake in some sense of a public character. The general principles which we have found applicable to the subject of mandamus, will, for the most part, apply to this proceeding.

9

5. The court cannot establish corporate officers, who would have been elected had all the legal votes offered been received by the inspectors. The only remedy is to set aside the election. And the court will not proceed by mandamus to fill an office until the title is first tried.10

6. And where a railway company are authorized to make a line, with branches, and they completed a portion of it, but abandoned other parts of it, this is not a public mischief, which will entitle the attorney-general to file an information, in the nature exercise of this remedy; nor the office of a churchwarden, Barlow in re, 30 L. J. Q. B. 271; s. c. 5 L. T. N. S. 289.

• Commonwealth v. Arrison, 15 Serg. & Rawle, 128; The People v. Thompson, 21 Wend. 235; s. c. 23 Ib. 537; Commonwealth v. Union Ins. Co., 5 Mass. R. 231; People v. River Raisin & Lake Erie Railw., 12 Michigan R. 381. See ante, § 197; State v. B. Concord & M. Railw., 25 Vt. R. 433; Grand Gulf Railw. and Bank v. State, 10 Sm. & M. 427; State v. A. P. Hunton and others, 28 Vt. R. 594. But if an election of managers of a corporation be not disputed during their term of office by quo warranto, and they are permitted to act throughout their term as managers de facto, the legality of the next election cannot be questioned for any vice or irregularity in the first. A writ of quo warranto brought during the term of an office may be tried after the term has expired, but title to a term of office already expired, at the issue of the writ, cannot be determined in this manner by proceedings instituted against those afterwards succeeding to the office. Commonwealth v. Smith, 45 Penn. St. 59. In Neall v. Hill, 16 Cal. R. 145, it is said that the removal of a mere private or ministerial officer of a corporation is a right that belongs to the corporation alone, and the courts have no jurisdiction to remove such officer, or, it seems, even to enjoin him from acting.

8 › Chap. XXVI. And see State v. Commercial Bank of Manchester, 33 Miss. R. 474, where the acts and omissions that will allow a forfeiture of the charter by quo warranto, are discussed.

In the matter of the Long Island Railw., 19 Wendell, 37; 2 Am. Railw. C. 453. In quo warranto against a usurper by a claimant, it is competent for the court to oust the usurper without determining the right of the claimant. Gano v. State, 10 Ohio St. 237. See Doane v. Scannell, 7 Cal. R. 393; People v. Same, Id. 432.

10 Rex v. Truro, 3 B. & Ald. 590.