an exactly contrary view obtains in this country. This difference may account for the conflict apparent in some of the decisions in the two countries on the subject of traffic arrangements between carriers by land and water.1

§ 975. Contemplated acts no ground for this remedy.—A mere vague apprehension of future mischief does not furnish any ground for a judgment of ouster from franchises.2

Nor is it within the scope of the relief afforded by the proceeding to nullify and avoid what has been already done, but only to affirm or adjudge as unauthorized the claim to an office, franchise or power already unlawfully exercised with or without color of right; and in case of an adverse claimant to an office to award it to him who is legally entitled to it. And the laws existing at the time the act was done by which the forfeiture was incurred are applicable, and none others.*

1 The agreement between the steamship companies upheld in Mogul S. S. Co. v. McGregor, 57 L. J. R. 541, before referred to would upon American authority have been held void because prejudicial to public interest.

If it had been shown in that case that the agreement created a monopoly, the decision would have been different upon English as well as upon American authority. As it was, the only issue was whether the entering into and carrying out the agreement was an abuse of a franchise and the public interest in its exercise being ignored, the agreement was upheld. In this country a corporation vested with franchises of a public nature must exercise them and cannot either delegate or abdicate except to the sovereignty which gave them the privileges and authority thus granted. The distinction between the powers of quasi public and other private corporations with respect to the jus disponendi has been fully explained in another place. See supra, Ch. VIII.

2 Where an information stated that the defendants, the incorporators of a railroad company, did not intend to construct the whole of their road according to its description in the articles of association, and that their intention was to make use of their organization for the purpose of condemning and appropriating private property, the court held that the information could not be maintained, and remarked that if the road should not be constructed by the company as contemplated within the time which the law allows for its completion, the proper remedy might then be applied for. State v. Kingan, 38 Ind. 71. See also, Com. v. Pittsburg, etc., R. R. Co., 58 Pa. St. 26; State v. Pipher, 28 Kan. 127. a State v. Lyons, 31 Iowa, 432.

* Com. v. Lykens Water Co., 110 Pa. St. 391; 2 A. 63.

§ 976. Parties to suit-Plaintif.—The parties in interest as in other cases should be made plaintiff and defendant. In theory at least the only party injured by the wrong for which redress is sought in a quo warranto proceeding is the sovereignty whose power and prerogative is usurped.1 All franchises not granted to the citizen belong to the state, and when those granted are forfeited or surrendered they revert to the state.2

66

By the designated title in which by the constitution the particular sovereignty sues whether it be "State," "Commonwealth" or People," the attorney-general or other authorized agent sues on his information at the relation of some one, if there be a relator, and if not, he may, in most cases, file the information at his discretion and upon his own information and belief."

In the absence of statutes authorizing it, the writ cannot issue on the information of a private individual.*

1 Supra, § 945.

2 Farnham v. Del. & Hudson Canal Co., 61 Pa. St. 265; Com. v. Union Ins. Co., 5 Mass. 230; State v. Patterson, etc., Turnp. Co., 21 N. J. L. (11 Zab.) 9; Houston v. Neuse Nav. Co., 8 Jones N. C. 476; Com. v. Fowler, 10 Mass. 290; State v. Ashley, 1 Ark. 513.

8 Com. v. Farmers' Bank, 2 Grant's Cas. (Pa.) 302; Com. v. Alleghany Bridge Co., 20 Pa. St. 185; Wallace v. Anderson, 5 Wheaton, 291; Eaton v. State, 7 Blackf. (Ind.) 65; State v. Moffit, 5 Ohio, 358; Hay v. People, 59 Ill. 94; Robinson v. Jones, 14 Fla. 256; State v. Somers Point, 49 N. J. L. 515. Holding also that the information by the attorney-general cannot be joined with an information at the instance of private relators against officers in the corporation; State v. Smith, 32 Ind. 213. An appeal taken at the instance of the relator may be dismissed by the attorney representing the government. State v. Douglas County Road Co., 10 Or. 198. If the original information was filed on relation, a supplemental information may be filed by the attorney for the government without a relator, and the original cause of forfeiture is not thereby abandoned. Hunnicutt v. State, 75 Tex. 233; 12 S. W. R. 106. No express authority of the legislature is necessary. The attorney-general has authority to bring the action by virtue of his office. State v. Southern, etc., R. Co., 24 Tex. 80. An information brought in a territory should be in the name of the United States and not in that of the territory. Territory v. Lockwood, 3 Wall, 236.

4 Com. v. Lexington, etc., Turnp., 6 B. Mon. (Ky.), 397; Com. v. Union Ins. Co., 5 Mass. 230; Houston v. Neuse River, etc., Co., 8 Jones (N. C.) L. 476; Com. v. Bunnell, 7 Pa. St. 34; Cleary v. Delierseline, 1 McCord (S. C.) 35; State v. Schueirle, 5 Rich. (S. C.) 299; Wright v. Allen, 2 Tex. 158. A land-owner

And it is held the court will not dismiss an information in the nature of a quo warranto on motion of a relator whose name was used without his authority, but will amend the information by striking out the relator's name.1

In Colorado and Nebraska it is provided that the information may be filed by an interested party where the proper law officer has been requested to do so and has refused.2

When the attorney-general is the relator a quo warranto will issue without a rule to show cause. As the law officer of the commonwealth he is presumed to be impartial, A suit to forfeit the franchises of national banks must be brought by the comptroller of the currency and lies for the intentional violation by their directors of the provisions of the national bank act.1

§ 977. Suit. how brought.-In England formerly, and in a few states now, the action can only be instituted "by leave of court first had and obtained " upon affidavit ; but where, as in most of the states, the proceeding has lost its criminal feature and assumed a civil character, the officer exercises the discretion which was formerly a judicial duty. This is analogous to the earliest. English practice, which was changed in the reign of William and Mary,5 taking effect in 1693. It was

ure.

cannot take advantage of a company's failure to construct its road within the time prescribed by its charter, the state having the sole right to enforce a forfeitCincinnati, H. & I. R. Co. v. Clifford, 113 Ind. 460; 15 N. E. 524; Bravard v. Cincinnati, H. & I. R. Co., 115 Ind. 474; 17 N. E. 183. Cannot join with the action an information at the instance of private relators. State v. Borough Somers Pt. (N. J.), 10 A. 377.

1 People v. Knight, 13 Mich. 230.

2 Civ. Code Colo. 1883, sec. 315; Compare St. Neb. ch. 71, sec. 1; People v. Grand Bridge Co., 13 Colo. 11; 21 Pac. Rep. 898; State v. Frazier (Neb.), 44 N. W. Rep. 471.

3 Com. v. America Bank, 10 Phila (Pa.), 156.

4 Rev. St. U. S. 5239.

6 Ch. 18.

passed to prevent frivolous informations and provided that no information could thereafter be filed without express orders of the court of King's Bench in open court. Subsequently by statute of 9 Anne1 the practice was again modified in proceedings against corporations and corporate officers, the pleading assuming a form somewhat similar to that at present prevailing in this country.

But under the practice acts of a majority of the states the proceeding is considered very much as a civil remedy, and consequently may be brought by the proper authority as other actions, and tried on its merits.

In a few of the states, however, the practice is analogous to that under the statute of 9 Anne, by which the granting of the writ is discretionary with the court, it having at all times the power to dismiss the proceeding if it appears that the writ was issued improvidently.2

§ 978. Peculiar methods of individual states.-A few states have adopted peculiar means of enforcing the remedy attainable by quo warranto. In Massachusetts the information is in the nature of a prosecution for some offence against the government and is filed and prosecuted in a court of criminal jurisdiction,3 while in Tennessee a court of chancery alone has jurisdiction of such suits which may be brought in the name of the state by any private relator upon giving security for costs, and the writ of quo warranto is unknown in practice, as is also the case in Wisconsin.5 In Illinois, the suit is not in the

4

1 Ch. 20, 1711.

2 Gilroy v. Com., 105 Pa. St. 484; Com. v. Arrison, 15 Searg. & R. 216; Vrooman v. Michie, 69 Mich. 42; 36 N. W. Rep. 749; People v. White, 70 Ill. 251, Terry v. Stauffer, 17 La. Ann. 306.

8 Goddard v. Smithett, 3 Gray, 116.

4 Hyde v. Trewhitt, 7 Coldw. (Tenn.), 59; Atty.-Gen. v. Leaf, 9 Humph. 753. 5 State v. Mesmore, 14 Wis. 115.

nature of a criminal prosecution, carried on in the name and by the authority of the people of the state. It is not a quo warranto, but is a special civil proceeding, brought to protect and enforce property rights.

In the absence of legislation conferring jurisdiction upon other tribunals the common law courts have exclusive jurisdiction of all questions relating to the forfeiture of franchises.2

But as both the question of jurisdiction and the proper method of procedure are mainly regulated by statute these need not be further noticed in this place.3

§ 979. Parties defendant.-There should be no dfficulty in determining the proper party or parties defendant in this action, and it is remarkable that any error in that respect should ever be made. Errors fatal to the proceeding have been committed by suing the wrong party, and by misjoinder of parties defendant, in some instances in England and in many in this country; and yet the proper practice was well settled a century ago in England and nearly as early in this country. In Rex v. Amery the true rule was stated by the prosecution and recognized by the courts. In that case it was said quoting from Lord Hale's Commonplace-Book “That if a quo warranto be brought for usurping to be a corporation it should be brought against particular per

1 Chicago Mut. L. Indem. Ass'n v. Hunt, 127 Ill. 257; 20 N. E. 55. 2 Jersey City Gas-L. Co. v. Consumers' Gas Co., 40 N. J. Eq. 427.

3 Code Civil Proc. N. Y., § 1785, provides that an action to dissolve a corporation may be maintained “where it has suspended its ordinary and lawful business for at least one year." Section 1798 provides that the attorney-general may sue to vacate the charter of a corporation, on the ground that it has "forfeited its privileges or franchises by a failure to exercise its powers." It was held that there is no conflict between the two sections, and an action by the attorney-general to dissolve a corporation, on the ground that it has suspended business, can be brought only after the lapse of a year, as prescribed by section 1785. People v. Atlantic Ave. R. Co., 57 Hun, 378; 10 N. Y. S. 907.