5 ing of this statute, and the fact that the trustees in question join in the application, forms no objection to granting the relief.1 This provision of law cannot be invoked by one who was not a stockholder at the time of the election complained of, and who received his stock from one of the authors of the wrong complained of. This statute is not restricted to moneyed corporations. Where votes rejected by inspectors at an election of directors, and which, if received, would have clected a certain ticket, are adjudged to have been erroneously rejected, the only remedy is to proceed under this statute to set aside the election.1 Under the California statute a stockholder may maintain an action to set aside an election of directors, although at the time of the election no stock had stood in his name on the books of the corporation sufficiently long to entitle him to vote. A State, when a stockholder in a corporation, may contest an election of directors. A statute of New Jersey makes it the duty of the Supreme Court, upon the application of persons complaining regarding any election, to give a hearing, and "thereupon establish the election so complained of, or to order a new election, or to make such order and give such relief in the premises as right and justice may appear to said Supreme Court to require." It was held, that the statute applied to elections of officers of private corporations, and that the court, having determined who would have been elected if all the legal votes tendered had been received, could put such persons in office and put out intruders.9 1 Matter of Pioneer Paper Co., 36 How. Pr. (N. Y.) 111. 2 Re Syracuse &c. R. Co., 91 N. Y. 1. 8 Matter of Cecil, 36 How. Pr. (N. Y.) 477. By a later Statute (Laws N. Y. 1880, p. 381), manufacturing companies exempted from the operations of §§ 5, 6 and 8 of this chapter, and this exempting statute operated retrospectively, and prevented further prosecution of proceedings theretofore commenced under the former statute. Re New York Express Co., 8 23 Hun (N. Y.), 615. This exempting was however repealed the next year. Laws N. Y. 1881, p. 161. 4 Matter of Long Island Railroad, 19 Wend. (N. Y.) 37; s. c. 32 Am. Dec. 429. 5 2 Deer. Cal. Code, § 312. Wright v. Central &c. Water Co., 67 Cal. 532. 7 State v. New Orleans &c. R. Co., 20 La. An. 489. 8 N. J. Rev. Stat., p. 184, § 44. Re St. Lawrence Steamboat Co., 44 N. J. L. 529. § 766. Information in the Nature of Quo Warranto.-- By the ancient common law, the writ of quo warranto was the regular remedy resorted to on behalf of the crown to oust an intruder from a public office. In the place of the ancient writ, the more flexible remedy of an information in the nature of a quo warranto was substituted, and this remedy is in ordinary use in the United States,1 with few exceptions. By analogy to the use of this remedy in the case of public offices, it is very generally held that the same remedy exists to oust persons who have usurped or intruded into the offices of either public or private corporations. It lies to restrain the appointment of professors by an incorporated college not authorized by its charter to make such appointment. It lies against individuals usurping the office of trustees of an incorporated church. It has been held the proper remedy where a cemetery association attempted by suit to collect of its de facto treasurer money remaining in his hands, which he refused to pay over to a newly elected treasurer on the ground that the election was illegal. It has been held the proper remedy to oust bank directors who have come into their offices through the forms of law, and are hence de facto officers, if they have been in fact illegally elected. Some holdings restrain the use of this remedy to cases of persons claiming to exercise some public office or authority. In England, until after a regular amo 8 1 Respublica v. Wray, 8 Dall. (U. S.) 490; Palmer v. Woodbury, 14 Cal. 43; People v. Scannell, 7 Cal. 432; People . Forquer, 1 Ill. 68; Sudbury v. Stearns, 21 Pick. (Mass.) 148; Lindsey v. Attorney-Geueral, 33 Miss. 508; Exp. Bellows, 1 Mo. 115; People v. Van Slyck, 4 Cow. (N. Y.) 297; Lewis v. Oliver, 4 Abb. Pr. (N. Y.) 121; Mayor &c. of New York v. Conover, 5 Id. 171; Commonwealth v. Cullen, 13 Pa. St. 133; Clark v. Commonwealth, 29 Id. 129; Commonwealth v. Fowler, 10 Mass. 290; State v. Deliesseline, 1 McCord (S. C.), 52; Akin v. Matterson, 17 Ill. 167; St. Louis County Court v. Sparks, 10 Mo. 117. Compare State v. Wadkins, 1 Rich. (S. C.) 42; State v. Evans, 3 Ark. 585. 2 Terry v. Stauffer, 17 La. An. 306. 3 People v. Tibbets 4 Cow. 358; People v. Kip, 4 Cow. (N. Y.) 382, note; State v. Buchanan, Wright (Ohio), 233; State v. Coffee, 59 Mo. 59. 4 People v. Trustees of Geneva College, 5 Wend. (N. Y.) 211. 5 Commonwealth v. Graham, 64 Pa St. 339. 6 Hunt v. Pleasant Hill Cemetery Association, 27 Kan. 734. Smith v. State Bank, 18 Ind. 327; State v. Ashley, 1 Ark. 513; State v. Harris, 3 Ark. 570. 8 Commonwealth v. Dearborn, 15 Mass. 125. tion from office by the corporation, the court will not grant a quo warranto to oust an officer.1 § 767. A Civil Proceeding. - An information in the nature of a writ of quo warranto to try the right to a corporate office, although partaking of the character of a criminal proceeding in its origin and form, is essentially a civil proceeding. The information, answer and reply, are in Missouri, subject to the rules governing corresponding pleadings in strictly civil cases, the information answering to the petition in an ordinary civil suit.3 §768. This Remedy Denied in the Case of Officers who are mere Servants or Employes and Removable at Pleasure. Although this remedy has, by a seeming aberration in Missouri, been allowed to exist in the case of a contest over the office of secretary of an insurance company, yet the better view is that it does not exist in the case of an officer of a private corporation, who is the mere servant or agent of the company, and holds at the pleasure and will of the directors. The reason is that a judgment against the defendant would be merely nugatory, for the directors might immediately reinstate him.5 In other words, this right plainly does not exist in the case of a corporate officer whose office is of such a nature that he is removable at the pleasure of the corporation. Where an officer is thus removable, he has no right to a notice of a proceeding to remove him, such as exists in other cases. Although, as hereafter seen,' mandamus is the ordinary remedy to restore an officer of a corporation where, under the principles of the common law, there is a right in the office in the nature of property or in the nature of a franchise, 1 Rex v. Heaven, 2 Durnf. & E. 772; Rex v. Ponsonby, 2 Bro. P. C. 311; Rex v. Mayor &c. of Truro, 3 Barn. & Ald. 590. 2 State v. Kupferle, 44 Mo. 154; s.c. 100 Am. Dec. 265; State v. Lingo, 26 Mo. 496; State v. Stewart, 32 Mo. 379; State v. Lawrence, 38 Mo. 535. 3 State v. Kupferle, 44 Mo. 154; s. c. 100 Am. Dec. 265. State v. Kupferle, 44 Mo. 154; s. c. 100 Am. Dec. 265; ante, 767. People v. Hills, 1 Lans. (N. Y.) 202. And see State v. Curtis, 35 Conn. 374; post, § 805. Dighton v. Stratford-on-Avon, 2 Keb. 641. It has been held in a modern case that stockholders in a joint stock corporation, in which the general public has no interest, may depose the officers of the corporation without notice or trial. Adamantine Brick Co. . Woodward, 4 McArthur (D. C.), 318. * Post, § 829. yet it has been denied to restore an officer who holds his office during pleasure. The power to set aside a corporate election has been denied in New York even in the case of an election of directors of a banking corporation, on the same ground, namely, that such officer may be removed at the pleasure of the associates; but this view does not seem to be in accordance with the current of authority. 4 § 769. Any Person Interested may be Relator. As this is regarded as a private remedy, and in the nature of a civil proceeding, it naturally follows that any person interested in the election or in the admission of the rightfully elected person into the office, may rightfully file the information. And although a private individual is not permitted, under the law of a particular jurisdiction to prosecute an information in the nature of quo warranto, to dissolve a corporation, yet he may be permitted to prosecute such an information in the case of an intrusion into a a corporate office. The remedy is allowed on the relation of a private individual against one illegally holding an office in a municipal corporation;5 and in many States it is the ordinary remedy of one claimant of a public office against the occupant of such an office. It was observed by Mr. Justice Strong that "doubtless, in England, when the information is against a burgess or alderman of a borough, a corporator is held a fit relator. He has an interest."" By analogy, any member of a corporation would ordinarily be a competent relator to dispute the right of any person to hold an office in the corporation. § 770. Information Filed by the Attorney-General or Prosecuting Attorney. The existence of the remedy at the relation of a private person, who is interested in the determination of the right to the office, does not, of course, in the case of a public office, divest the State of its remedy by an information 1 Dighton v. Stratford-on-Avon, 2 Keb. 641. Matter of Bank of Dansville, 6 Hill (N. Y.), 370. 3 Commonwealth v. Union Ins. Co. Newburyport, 5 Mass. 230; Commonwealth v. Fowler, 10 Id. 290. 4 State v. Paterson &c. Co., 21 N. J. L. 9. 5 Commonwealth v. Jones, 12 Pa. St. 365. 6 State v. Orvis, 20 Wis. 235. * Com. v. Cluley, 56 Pa. St. 270; 3. c. 34 Am. Dec. 75, 79. filed by its attorney-general, or other proper law officer, to oust an intruder into an office held under the State. Under a statute, it is held in New York that the attorney-general is authorized to bring such an information in the name of the public. Such action must be commenced and prosecuted like other civil actions, and is governed, in respect to the pleadings and proceedings, by the same rules. Such an action is one of legal, not of equitable cognizance, and the issues therein are strictly legal ones.3 § 771. What the Information must Allege. Where the action is brought by the State against one for usurping a public office, the same certainly is required in the information as in an indictment. In such a case, it is not sufficient to charge that the defendant was "unlawfully executing the duties and exercising the powers" of the office described, without alleging the usurpation or specifying wherein such usurpation was unlawful.' When the court is not judicially informed concerning the nature of an alleged office in a corporation, it must be so described, as to its nature and duties, as to show whether it is an office within the purview of the law relative to the usurpation of franchises. Thus, where such an information charged the defendants with intruding 1 Commonwealth v. Fowler, 10 Mass. 295; Parker v. Smith, 3 Minn. 240. 2 People v. Albany &c. R. Co., 1 Lans. (N. Y.) 308; 55 Barb. (N. Y.) 344; 38 How. Pr. (N. Y.) 228; 7 Abb. Pr. (N. Y.) (N. s.) 265. 3 People v. Albany &c. R. Co., 57 N. Y. 161. This decision affirmed the judgment of the general term of the Supreme Court but overruled the reasoning, to the effect that in such an action, the relief demanded consists in, and the nature of the case requires, the exercise of the equitable powers of the court; and an injunction may be issued, and a receiver be appointed, as the usual and appropriate instrumentalities of a court of equity. People บ. Albany &c. R. Co., 1 Lans. (N. Y.) 308; 55 Barb. (N. Y.) 344; 38 How. Pr. (N. Y.) 228; 7 Abb. Pr. (N. Y.) (N. s.) 265; 5 Lans (N. Y.) 25. It 4 Lavalle v. People, 68 Ill. 252. |