§ 986. Public injury presumed.-There should never be any difficulty from the lack of evidence of direct public injury in quo warranto proceedings. Every perversion of a franchise is a public injury. The question whether or not the public has sustained an injury is purely one of law, and the presumption of a resulting public injury is generally inseparable from the perversion, usurpation or non-user of a franchise, still courts have a discretion to enter or refuse to enter judgment of forfeiture accordingly as the public injury appears serious or trivial.

There is a nice distinction necessary to be kept constantly in view, between corporate powers and corporate franchises. The occasional and temporary abuse of the former is matter of complaint for the shareholders and creditors; but the state can object only when such abuse has been continued to the extent of involving and injuring public interests. The assumption of a mere power such as any individual may assume, for instance, the right to manufacture an article or to deal in evidences of indebtedness when not authorized by the charter, constitutes a ground of complaint by

ance" was so indefinite that a court of equity could not enforce the trust as a charitable use, therefore the public were not shown to be injured by the breach of trust. People v. Dashaway Ass'n, 84 Cal. 114; 24 P. 277. But suppose the defendant had been incorporated and the donations had been to a use capable of enforcement in equity, the acts alleged would still have been a mere breach of trust for which either the state or the donor could have proceeded in equity and had the aid of one or more of several remedies. True the fact that there is an equitable remedy does not of itself bar a proceeding by quo warranto; but it may be well doubted if the mere fact that the misappropriation is of funds of a quasi public nature or even purely public amounts to a perversion of a franchise so as to authorize the writ. In the case then before the court there evidently was no legal incorporation as the promotion of temperance in its unqualified sense is not one of the objects specified in the Code for which corporations may be formed. A quo warranto proceeding to oust the individuals composing the de facto corporation from the exercise of the franchise of being a corporation would have probably been sustained. An intimation to that effect was given in the opinion. Or if it were conceded that a corporation may be organized for that object, a complaint for non-user would have been sustained.

those privately interested only, unless long continued, in which case the state may proceed by quo warranto. If, however, a franchise not granted be usurped, such for instance as that of taking tolls upon a highway by a banking corporation or of banking by an insurance company no public injury need be proven.1

§ 987. Changes in the pleadings under codes.-Under the earlier practice and before quo warranto was placed on a footing with civil remedies the prosecutor might in a proceeding to forfeit corporate franchises either disclose in his information the specific ground of forfeiture relied upon, or he might in general terms charge the respondent with exercising certain franchises without authority and call upon it to show by what warrant such powers were claimed. The plea might then deny the facts charged in general terms or set forth the authority relied upon as the case might be, and the replication might then allege the acts upon which the prosecution relied as working a forfeiture. These again might be denied or a demurrer might be filed following substantially the same course as in ordinary common law proceedings.2

1 In a recent Minnesota case the court said: "We think it may be safely stated as the general consensus of the authorities that to constitute a misuser of the corporate franchises such as to warrant its forfeiture the ultra vires acts must be so substantial and continued as to amount to a clear violation of the condition upon which the franchise was granted, and so derange or destroy the business of the corporation that it no longer fulfils the end for which it was created. But in case of excess of powers it is only where public mischief is done or threatened that the state by the attorney-general should interfere. State v. Minn. T. M. Co., 40 Minn. 213, per MITCHELL, J.

2 High on Extraordinary Legal Rem., sec. 30; State v. Commercial B'k, 10 Ohio, 535. In Ohio it is held that the rules of pleading established by the Code of Procedure are not applicable to the proceedings in the nature of quo warranto, and consequently the pleadings in such cases are still governed by the common law practice prevailing at the adoption of the Code. State v. McDaniel, 22 Ohio St. 354.

The original form of pleading as has been stated is still applicable under the California Code in a proceeding against individuals for assuming without authority

But by analogy to the general rules of pleading established by the various codes and on the authority of several cases previously cited where the object of the proceeding is to oust the defendant from the franchise of being a corporation on account of the non-performance of conditions, or is for the seizure of franchises which it is alleged the defendant has usurped without lawful authority, the facts constituting the breach in the one case and the exercise or usurpation in the other should be set forth with reasonable certainty.

§ 988. The trial.-Amendments of pleadings before and after trial are as freely allowed in this as in ordinary civil actions when necessary in furtherance of substantial justice.1

It is frequently necessary that issues of fact arising in quo warranto proceedings should be sent to a jury for trial. No rule against the propriety of having an issue of fact tried by a jury in any such case is to be found in any provision or precedent under the codes. And as the proceeding is now regarded as in the nature of a civil action, a new trial may be granted to either party upon sufficient ground as in ordinary cases, though it was formerly doubted whether a new trial could be granted in such cases after an issue had been tried by a jury.2

to act in a corporate capacity; People v. Stanford, 77 Cal. 360, and where the exercise or withholding of an office is charged. People v. Abbott, 16 Cal. 359; People v. Clayton, 8 Pac. Rep. 66.

1 Com. v. Gill, 3 Whart. 228; State v. Gleason, 12 Fla. 190; Com. v. Commercial B'k, 28 Pa. St. 383.

2 People v. Albany, etc., R. Co., 55 Barb. (N. Y.) 344; People v. Doersburg, 17 Mich. 135. But in those jurisdictions where the ancient features and effects of the writ are preserved, it is held that neither party is entitled as matter of right to a jury trial. State v. Minn. T. M. Co., 40 Minn. 213. It was held in Dorsey v. Barry, 24 Cal. 449, and in Cosgrove v. Howland, Id. 457, that a new trial could only be granted by the supreme court on appeal of a proceeding to try title to an office. These cases arose however under the provision of the con

In other respects the trial of the issues raised by the pleadings upon an information are proceeded with, and the same interlocutory orders made, and the same motions in furtherance of justice applicable to the nature and form of the action as in other cases.

§ 989. The judgment.-The judgment against the defendant in quo warranto is virtually the same as under the common law practice modified by English statute, the object of the action being the same. The judgment directed by statute to be entered is little more than a transcript from the statute, 9 Anne Ch. 20, which provided that if the respondent should be found guilty in cases affecting municipal offices and franchises, judgment of ouster should be given as well as a fine for such usurpation or intrusion.

The same may be said of the judgment for the usurpation of an office in a private corporation.

In these cases the courts have sometimes severely punished defendants in the shape of fines; but in ordinary cases affecting corporations, corporate offices and ordinary franchises, judgment seldom extends beyond

stitution, § 9, Art. 6, as it read at that time, and the act of 1850 governing contested elections.

1 State v. Barron, 57 N. H. 498. The burden of proof is on the relator. State v. Kupferle, 44 Mo. 154; if no issue of law or fact is taken it is error for the court, without trial, to find the defendant guilty of usurpation and render judgment of ouster. Paul v. People, 82 Ill. 82. The rules of practice applicable to quo warranto are to be followed substantially in trial of the issues in the information. People v. Pease, 30 Barb. (N. Y.) 588. Compare People v. Conover, 6 Abb. (N. Y.) Pr. 220.

2 By municipal offices is meant those having the administration of public duties as those of a state, county, city or town and by municipal franchises is meant those which appertain to the active exercise of governmental power such as levying and collecting taxes, governing a political division as a municipality and the like. The unlawful exercise of the franchise of collecting tolls upon a highway or river would not be an assumption of a municipal franchise since though a public injury it is not an encroachment upon the ordinary duties of any department of the constituted state government.

ouster or seizure, and occasionally a merely nominal fine.1

There may be judgment of ouster though the usurpation has ceased before the trial.2

The effect of a judgment of forfeiture against a corporation is to exclude it from the right to exercise any of its franchises or privileges. No grantee or licensee of the corporation can thereafter justify his action. under its rights or franchises.3

A clear distinction is recognized in England, and likewise exists in this country, between a judgment of ouster from and seizure of franchises and a judgment of forfeiture of the franchise of being a corporation. In the former case the judgment neither extinguishes nor dissolves the corporation, and the mere seizure by the crown of certain franchises and liberties which have been usurped by it does not affect the corporate entity.1 The distinction is well exemplified by Sir Robert Sawyer in King v. City of London. He says the rule is this: "When it clearly appears to the court that a liberty is usurped by wrong and upon no title, judgment only of

5

1 See Cal. C. C. P., § 309.

2 Rex v. Williams, 1 W. Bl. 93. If the defendant fails in the title he sets up, judgment must be for the government. Rex v. Yarmouth, 4 Burr. 2143. A plea referred to an act of incorporation. To this the reply was that the act had been repealed and rejoinder that the repealing law was passed without notice, and without misuse of the franchise. A demurrer to this rejoinder was sustained by the court. It was held that this without any further judgment of the court did not prevent the parties from continuing to exercise the franchise and therefore was not a final judgment which could be reviewed by the U. S. Supreme Court. Miners' Bank v. U. S., 5 How. 213.

8 Campbell v. Talbot, 132 Mass. 174.

4 Smith's Case, 4 Mod. Rep. 53. In this case the court said: "A corporation may be dissolved for it is created upon a trust, and if that be broken it is forfeited; but a judgment of seizure cannot be proper in such a case for if it be dissolved to what purpose should it be seized? Therefore by the judgment in the quo warranto the corporation was not dissolved, for it neither extinguishes nor dissolves the body politic. Whenever any judgment is given for the king for the liberty which is usurped it is quod extinguatur, etc."

5 Cited in 2 T. R. 522.