PEOPLE EX REL. V. HEALY 253 tify us that this has been done, we will then affirm the judgment. Otherwise, we shall be obliged to reverse it formally, with leave to the plaintiff to apply to the district court for permission to change the form of action under the Pennsylvania statute of 1871 (P. L. 265; 3 Pepper & Lewis' Digest Laws, col. 5894). The act reads as follows: "In all actions pending or hereafter to be brought in the several courts of this commonwealth, said courts shall have power at any stage of the proceedings to permit an amendment or change in the form of action if the same shall be necessary for a proper decision of the cause upon its merits," etc. -and seems to provide a remedy for the existing situation.53 SECTION 3. PUBLIC CIVIL ACTIONS. 54 THE PEOPLE ex rel. RASTER v. HEALY. SUPREME COURT OF ILLINOIS, 1907. 230 Ill. 280. E. O. Raster filed in the Circuit Court of Cook County a petition for a mandamus against J. J. Healy, state's attorney for that county, commanding him to sign a petition for leave to file an information in the nature of a quo warranto against one H. L. Brand charged with having usurped the office of treasurer of the Illinois Publishing Company, an Illinois corporation. It appeared from relator's affidavit attached to the petition for leave to file the information that Raster was secretary of that company and a director; that the board of directors consisted of ten persons; that by the by-laws a majority of the board was required to constitute a quorum, that Brand had been elected at a meeting held by five directors only and had never been properly and legally elected as trasurer, but had intruded into and unlawfully held the office. To the petition for a mandamus. Healy demurred. The demurrer was sustained by the circuit court and the petition dismissed. Raster appealed.55 SCOTT, J. This controversy involved the construction of section I of chapter 112, Hurd's Revised Statutes of 1905, which reads: "That in case any person shall usurp, intrude into, or unlawfully hold or execute any office or franchise, or any office in any corporation created by authority of this state (or any person shall hold or claim to hold or exercise any privilege, exemption or license, which See also, Duffield v. Rosenweig, 144 Pa. 520, 23 Atl. 4 (1891); Miller v. Lehigh Co., 181 Pa. 622, 37 Atl. 824 (1897); Raymond Syndicate v. Guttentag, 177 Mass. 562 (1901); Pratt v. Davis, 118 Ill. App. 161 (1905). See generally High's Extraordinary Legal Remedies. The arguments of counsel and part of the opinion of the court are omitted. has been improperly or without warrant of law issued or granted by any officer, board, commissioner, court, or other person or persons authorized or empowered by law to grant or issue such privilege, exemption or license), or any public officer, shall have done, or suffered any act which, by the provisions of law, works a forfeiture of his office, or any association or number of persons shall act within this State as a corporation without being legally incorporated, or any corporation does or omits any act which amounts to a surrender or forfeiture of its rights and privileges as a corporation, or exercises powers not conferred by law, or if any railroad company doing business in this state shall charge an extortionate rate for the transportation of any freight or passenger, or shall make any unjust discrimination in the rate of freight or passenger tariff over or upon its railroad, the attorney-general or state's attorney of the proper county, either of his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction, or any judge thereof in vacation, for leave to file an information in the nature of a quo warranto in the name of the people of the state of Illinois, and if such court or judge shall be satisfied that there is probable ground for the proceeding, the court or judge may grant the petition, and order the information to be filed and process to issue. When it appears to the court or judges that the several rights of divers parties to the same office or franchise, privilege, exemption or license, may properly be determined on one information, the court or judge may give leave to join all of such persons in the same information, in order to try their respective rights to such office, franchise, privilege, exemption or license." It is contended by the appellee that this statute vests the state's attorney of the proper county with an arbitrary discretion in reference to seeking leave to file an information in the nature of a quo warranto in the name of the people; that in the exercise of that discretion he can not be controlled by the courts, and that he may refuse to seek the leave for any reason which to him seems sufficient or may refuse when no reason at all can be assigned for so doing; while appellant argues that in a case such as that now before us, where the proposed individual relator has a personal and private interest in the litigation which he desires to set on foot and where the interest of the public is purely or largely theoretical, the only discretion vested in the legal representative of the people is a discretion to determine whether the documents presented to him by the individual are in proper legal form, and whether the party seeking the institution of the suit presents evidence of such facts as establish his legal right to the remedy to be afforded by judgment against the respondent in the quo warranto proceeding. Originally a proceeding of this character was by writ of quo warranto against any one who claimed or usurped any office, franchise or liberty, to inquire by what authority he supported his claim, in order to determine the right. Later the practice was changed and an information in the nature of a writ of quo warranto succeeded PEOPLE EX REL. V. HEALY 255 the former method. (3 Blackstone's Com. 262, 263.) By the common law the proceeding in quo warranto was employed exclusively as a prerogative remedy, to punish a usurpation of franchises or liberties granted by the crown, and never as a remedy for private. citizens desiring to test the title of persons claiming to exercise a public franchise or desiring to establish a private right. In England the information, as a means of investigating and determining civil rights between parties, owes its origin to the statute of 9 Anne, chapter 20, which authorized and required the proper officer to file the information by leave of court, upon the relation of any person desirous of prosecuting the same, against any person usurping or intruding into any municipal office or franchise in the kingdom.56 (High on Extraordinary Legal Remedies, 3d ed., sec. 602.) That statute, however, having been passed in the year of our Lord 1710, has never been in force in this state.57 It will be observed from examination of section 1, supra, that the proceeding is made the vehicle for the assertion of many rights, both private and public, which could not have been vindicated by this method at the common law. As originally used, the proceeding was criminal in character, and the offender, upon conviction, was liable both to fine and imprisonment, as well as ouster from the franchise or liberty which he had wrongfully usurped. Under our statute the proceeding is, in fact, a civil remedy when used for the protection of private rights, and in the event of a judgment in favor of the defendant, costs may be awarded against the relator.58 (Ch. 112, sec. 6, supra.) See opinion of Tindal, C. J., in Darley v. The Queen, 12 Cl. & F. 520 (1846) at p. 536. Proceedings under the old writ of quo warranto were civil. When proceedings by information in the nature of quo warranto were substituted these were at first deemed criminal, as they involved fine or imprisonment in addition to the ouster. Nevertheless, proceedings at the instance of private relators were soon regarded as merely civil. King v. Francis, 2 T. R. 484 (1788). And now by the act of 1884, 47 and 48 Victoria, ch. 61, § 15, amending the judicature act, proceedings in quo warranto are deemed to be civil. For a recent case, see The King v. Beer, L. R. (1903) 2 K. B. Div. 693. "In Illinois, acts of parliament made in aid of the common law prior to the fourth year of the reign of James I (1607) are in force until repealed. M'Cool v. Smith, 1 Black (U. S.) 459 (1861). 38 In the United States the remedy by quo warranto is generally regarded as a purely civil proceeding. Foster v. Kansas, 112 U. S. 201 (1884); Commercial Bank v. The State, 12 Miss. 439 (1845); State v. Ashley, 1 Ark. 279 (1839); State v. McDaniel, 22 Ohio St. 354 (1872); Attorney-General v. Delaware & B. B. R. Co., 38 N. J. L. 282 (1876); Respublica v. Wray, 2 Yeates (Pa.) 429 (1799); Attorney-General v. Sullivan, 163 Mass. 446 (1895); State v. Standard Oil Co., 218 Mo. 1 (1909). In New York, the writ of quo warranto is abolished, but the same relief may be had in an action brought in the name of the people of the state. Code of Civil Procedure, §§ 1983-1986; People v. McLaughlin, 174 N. Y. 450 (1903); People v. Loew, 19 Misc. (N. Y.) 248 (1897); People v. Hinsdale, 43 Misc. (N. Y.) 182 (1904). And in code jurisdictions although the form of the writ is abolished the substance of the proceeding remains unaltered. Territory v. Hauxhurst, 3 Dak. 205 (1882); Wishek v. Becker, 10 N. Dak. 63 (1900); State v. Masons and Odd Fellows Joint Stock Assn., 91 Kans. 9 (1913). By the common law, and in England prior to the passage of the statute of Anne, arbitrary discretion was lodged in the attorneygeneral to determine whether he would move, and that discretion. could not be controlled or reviewed. (Attorney-general v. Ironmongers' Co., 2 Beav. 314; Attorney-general v. Wright, 3 Beav. 447 ; People v. Attorney-general, 22 Barb. 114; People v. Fairchild, 8 Hun. 334; In re Gardner, 68 N. Y. 467; Everding v. McGinn, 23 Ore. 15.) In extending the scope of this proceeding the legislature of this state has not by express words changed or altered the common law so far as the discretion vested in the attorney-general or state's attorney is concerned, but the character of the discretion possessed by these officers must be determined, to some extent, by consideration of the rights which the law-making power has committed to that discretion. By the common law the information in the nature of a quo warranto was solely a prerogative remedy. No suit was ever prosecuted by that remedy at the instance of a private person or for the assertion of a private right. It was used only where a wrong had been done, or was alleged to have been done, to the king, and it was therefore the rule that only the king, or his representative, should determine whether a suit should be brought to enforce the right of the king. Where jurisdiction is given the courts to enforce the rights of private individuals by this method it is manifest that the power to determine whether the suit should be brought should not be lodged in the legal representative of the sovereign power, when, as here, the right of the citizen is substantial and the concern of the state with regard to the litigation is practically or entirely theoretical. In such case, the reason for the rule having failed the rule itself should fail. When the legislature extended the right to private individuals to assert private rights by this proceeding, it is apparent that it was intended that they should have an opportunity to seek redress for their wrongs by making application to a court, or judge thereof, for leave to file an information. The duty resting upon the state's attorney to sign and present a petition for leave to file an information in the nature of a quo warranto where evidence of facts is properly presented to him by a proposed relator which shows prima facie that the relator is legally entitled to the relief, in reference to a private right, which would be offered him by a judgment in his favor in a quo warranto proceeding, is an absolute one. It follows, therefore, that where he declines to act for any reason other than the facts, evidence of the existence of which is presented to him, do not warrant the relief which the proposed relator seeks, or that the petition and affidavit or affidavits presented to him are not in proper legal form, his declination is an abuse of his discretion, conceding that his construction of the statute be correct, and such an abuse of discretion as amounts to a refusal on his part to exercise his discretion at all and to a refusal to perform the duty enjoined upon him by the law. Courts of last resort in our sister states have frequently found themselves confronted with the same difficulty which we are now PFOPLE EX REL. V. HEALY 257 considering, where legislatures have extended the scope of the remedy by quo warranto to include the enforcement of private right but have failed to impose by express words a positive duty upon the attorney-general or state's attorney to proceed at the instance of the individual relator, or have failed to provide that the proceeding may be instituted without the co-operation of those officers. It has sometimes been held that the arbitrary discretion of the public prosecutor still exists as at common law, and that if he refuses to lend his name to the proceeding the individual relator is without remedy, even though the refusal of the officer results from political, selfish or other improper considerations. In other states relief for the relator has been suggested by various methods, not substantially different, so far as the result to be attained is concerned.59 The statute of Anne does not expressly require the officer of the crown to file the application for leave, and yet Rex v. Trelawney, 3 Burr. 1616, and Rer v. Wardroper, 4 Burr. 1964, hold that under that statute the officer is without discretion in the matter but must apply at the instance of the private relator, and that the only discretion is in the court; and in State v. Elliott, 13 Utah 200, it was said that "except when changed by statute the rule of procedure is practically the same in this country as in England" under the statute of Anne. It is, of course, true, that in many cases where the individual relator has a private and personal interest in the suit which he seeks to set on foot the public also has a substantial interest therein. No injury can result to the public in such instances, however, by requiring the prosecutor to proceed, for the reason that the court, or the judge thereof, when the petition for leave to file the information is presented, is vested with a sound legal discretion to be exercised. in determining whether leave to file the information should be granted, and the court or the judge thereof may, in the exercise of 50 Under statutes confirming the right to petition for a quo warranto to the attorney-general, the consent of that officer is necessary although the proceedings are at the instance of a private relator. Wallace v. Anderson, 5 Wheat. (U. S.) 291 (1820); Barnum v. Gilman, 27 Minn. 466 (1881); State v. Cook, 39 Ore. 377 (1901); People v. McClellan, 118 App. Div. (N. Y.) 177 (1907). But it has been intimated in some cases and held in others that the court will in a proper case compel the state officer to file the information. State v. Deliesseline, 1 McCord (S. Car.) 52 (1821); In re Bank of Mount Pleasant, 5 Ohio 250 (1831); Lamoreaux v. Ellis, 89 Mich. 146 (1891); Cain v. Brown, 111 Mich. 657 (1897); State v. Frazier, 28 Neb. 438 (1889); State v. Withers, 121 N. Car. 376 (1897); State v. Dahl, 69 Minn. 108 (1897). In Pennsylvania, under the Act of June 14, 1836, P. L. 621, §§1-2, quo warranto for the usurpation of a public office must be at the suggestion of the attorney-general or some authorized agent of the commonwealth. Commonwealth v. Burrell, 7 Pa. 34 (1847), the rights of a private relator are confined to cases where his individual interests are involved. Commonwealth v. Meanor, 167 Pa. 292 (1895);_ Commonwealth v. Bowditch, 217 Pa. 527 (1907); Mathews Petition, 238 Pa. 419 (1913). A private relator, though having an interest is not entitled to the writ for the purpose of forfeiting a charter. Commonwealth v. Philadelphia & C. C. R. Co., 10 W. N. Cas. 400 (1881); Murphy v. Farmers' Bank, 20 Pa. 415 (1853). 17-CIV. PROC. |