ceeding in behalf of a private individual. In the former case no leave is necessary.' But it is otherwise in the latter, in some of the states, where the proceeding is treated as an ordinary one to be commenced and prosecuted as of right and without leave of court.

A court of superior jurisdiction may refuse to entertain the proceeding on the ground that it may be prosecuted in local courts of inferior jurisdiction. In most of the states the proceeding is still required to be commenced and prosecuted in the name of the state or some officer of the state,3 either for the people generally, or on the relation and for the benefit of some citizen having a peculiar interest in the controversy, or, in some of the states, on the relation of a voter and tax-payer having no other interest. But even this is not required in some of the states. The proceeding is allowed to be instituted by a private individual where the proper officer refuses to act, and in some states without calling upon such officer, upon leave granted, where the individual has, or claims to have, a superior claim to the office, or without leave in other states. But in such cases the proceeding is a civil statutory proceeding affecting primarily a mere private right and differs essentially from the proceeding by quo warranto or information in the nature of quo warranto as well understood.

There is a clear distinction between an information by the proper officer of the state on its behalf which may be presented as of right without leave, and one by or on behalf of private relators, which can only be presented by leave of court, unless otherwise provided by statute.s

It is usually held that the remedy can be enforced in favor of a private individual only as against an officer, or

1 State v. Stone 25 Mo. 555.

2 State v. Vail, 53 Mo. 97.

3 State v. Mayor, 49 N. J. Law, 515; 10 Atl. Rep. 377.

State v. Hall, 111 N. Car. 369; 16 S. E. Rep. 420.

5 State v. Frazier, 28 Neb. 438; 44 N. W. Rep. 471.

6 Vrooman v. Michie, 69 Mich. 42; 36 N. W. Rep. 749; People v. Board

of Supervisors, 51 N. W. Rep. 1114.

7 State v. Mills, 27 Pac. Rep. 560.

8 State . Mayor, 49 N. J. Law, 515; 10 Atl. Rep. 377; People v. North Chi. Ry. Co., 88 Ill. 537.

one claiming to be an officer of a corporation, and not against the corporation; and that all proceedings to inquire into the existence of the corporation, or its right to exist, directly or indirectly, must be instituted and carried on in the name of the state; but the right, on the part of the state, to oust one who is claiming to exercise the duties of an office, on the ground that no such office exists, by reason of the fact that the municipality has not been legally organized, has been maintained under the codes and statutes of some of the states, although the common law rule was undoubtedly the other way.2

In

In order to authorize the issuance of the writ an actual user or possession of the office or franchise must be shown. A mere claim of right to such user is not enough.' most of the states jurisdiction to issue the writ or entertain the information is conferred upon courts of superior jurisdiction, and particularly the appellate courts of last resort, by the constitution. Where so conferred it can not be taken away by statute,' unless such power is conferred upon the legislature by the constitution."

The power to issue the writ or to entertain an appeal in this class of cases is sometimes limited by the amount in controversy, but this is not usually the case.

The constitutionality of a statute may be tested by the proceeding; but only where the question of the right to exercise the office or franchise is affected by it and not

1 State v. Mayor, 49 N. J. Law, 515; 10 Atl. Rep. 377; People v. North Chi. Ry. Co., 88 Ill. 537; State v. Vickers, 51 N. J. Law, 180; 17 Atl. Rep. 153.

2 State v. Parker, 25 Minn. 215; People v. Carpenter, 24 N. Y. 86; Commonwealth v. Fowler, 10 Mass. 290.

People v. Thompson, 16 Wend. 654.

* State v. Baker, 38 Wis. 71; People v. Bingham, 82 Cal. 238; 22 Pac. Rep. 1039; Conger v. Convery, 52 N. J. Law, 417; 20 Atl. Rep. 166.

5 State v. Marlow, 15 Ohio St. 114, 133; State v. Harmon, 31 Ohio St. 250, 260.

State v. Shakespeare, 41 La. Ann. 156; 6 Sou. Rep. 592; People v. Perry, 79 Cal. 105; 21 Pac. Rep. 423; People v. Bingham, 82 Cal. 238; 22 Pac. Rep. 1039.

'Attorney-General v. Perkins, 73 Mich. 303; 41 N. W. Rep. 426; Peo pler. Riorden, 73 Mich. 508; 41 N. W. Rep. 482.

where the question is as to the power to do some act by virtue of the statute.'

The jurisdiction to inquire into the right to hold public offices is not confined to any class or classes of offices, but extends to all, executive, judicial, legislative, administrative, ministerial, and military.2

Sometimes the power to determine the right to an office in a legislative body is vested in the body itself, in which case it is sometimes held that the jurisdiction thus granted is exclusive and that the courts have no power to inquire into such right,3 especially where such power is vested in the legislative body by the constitution."

In other of the cases, however, a different view of the matter is taken, it being held that the jurisdiction of the courts is not taken away by vesting the same jurisdiction in the body of which the party to be affected is, or claims to be, a member. This is the better rule on the subject where the power of the legislative body is merely statutory. In those states in which it is held that a statutory jurisdiction to hear a contest by the body of which the party claims to be a member is exclusive, it is held that this only extends to the mere question whether the party has been elected to the office or not and that the courts still have the power to inquire whether there is in fact any such office or whether there is any law authorizing the election."

The jurisdiction does not depend upon the manner in which the right to hold an office is claimed to have been obtained, whether by charter, by appointment, or by pop

'People v. Whitcomb, 55 Ill. 172; State v. Baughman, 38 Ohio St. 455,

459.

2 High Ext. Leg. Rem., secs. 634, 635, 637; State v. Boyd, 31 Neb. 682; 48 N. W. Rep. 739.

3 People . Metzker, 47 Cal. 524; State v. Berry, 47 Ohio St. 232; 24 N. E. Rep. 266.

5

State v. Tomlinson, 20 Kan. 692.

People v. Hall, 80 N. Y. 117; People v. Bingham, 82 Cal. 238; 22 Pac. Rep. 1039; State v. Anderson, 26 Fla. 240; 8 Sou. Rep. 1.

6 Commonwealth v. Meeser, 44 Pa. St. 341; Commonwealth v. Fowler, 10 Mass. 290; State v. O'Brien, 47 Ohio St. 464; 25 N. E. Rep. 121.

ular election, but extends to all cases. In cases of popular elections the returns or certificates of canvassing boards or officers are not conclusive upon the courts, nor is the certificate or commission issued by the governor or other proper officer conclusive.3

The remedy is extraordinary and will not be administered where the party has an adequate remedy by ordinary proceedings at law; but the fact that another remedy is given to private individuals does not take away the right of the state to the remedy of quo warranto.

5

6

In order to authorize a forfeiture of the franchises of a corporation, at the instance of the state, the acts complained of as working a forfeiture must be such as work or threaten a substantial injury to the public; and, therefore, if the wrongs complained of affect the stockholders of the corporation only, and they have another remedy, the courts will not interfere by quo warranto.

The remedy is only applicable where the public has an interest, and, therefore, can not be used against persons alleged to have assumed a merely private office or trust not affecting the public interests, nor can it be used to test the right to exercise a mere temporary employ

ment.9

Under the proceeding, instituted on behalf of the people, or on the relation of a private individual, it is usually held that the question as to the defendant's right to an office alone will be determined and not whether the relator

1 High Ext. Leg. Rem., sec. 626.

2 High Ext. Leg. Rem., secs. 638, 639.

State v. Vail, 53 Mo. 97.

4 High Ext. Leg. Rem., sec. 617; Tarbox v. Sughrue, 36 Kan. 225; 12 Pac. Rep. 935; People v. Cooper, 139 Ill. 461; 29 N. E. Rep. 872.

5 Commonwealth v. Towanda Water Works, 15 Atl. Rep. 440; Territory v. Virginia Road Co., 2 Mont. 96.

* State v. Minnesota, etc., Co., 40 Minn. 213; 41 N. W. Rep. 1020; Attorney-General v. Detroit Suburban Ry. Co., 96 Mich. 65; 55 N. W. Rep. 562.

State v. Minnesota, etc., Co., 40 Minn. 213; 41 N. W. Rep. 1020.

8 High Ext. Leg. Rem., secs. 620, 625; Commonwealth v. Dearborn, 15 Mass. 125.

9 Bruner v. Superior Court, 92 Cal. 239, 248; 28 Pac. Rep. 341; People r. Cain, 47 N. W. Rep. 484.

was elected; but a different rule prevails where a contest of the office, by or on behalf of one claiming the office, is allowed by statute. In such cases the question is one of right between the two claimants, and the relator, or contestant, can only recover upon his own right to the office, and he is entitled to have his right determined, and if elected, to have the office awarded to him in addition to the usual judgment of ouster against the defendant. In such cases the relator must establish his right to the office.3 A foreign corporation may be deprived of the right to do business in a state on account of wrongful acts committed by it in connection with its franchise to do business therein.'

There are

84. NEW TRIALS AND VACATION OF JUdgments. various ways by which a party may be relieved from an erroneous or void judgment, amongst others by a new trial, by vacation of judgment on motion made in the court in which the judgment was rendered, by injunc tion, by proceedings for a new trial in a court of equity, by writ of error, by appeal, by writ of audita querela," by certiorari," by bill of review, or in the nature of a bill

1 State v. Lane, 16 R. I. 620; 18 Atl. Rep. 1035.

2

People v. Ryder, 12 N. Y. 433; People v. Londoner, 13 Colo. 303; 22 Pac. Rep. 764.

3 State v. Hamilton, 29 Neb. 198; 45 N. W. Rep. 279; State v. Kennerly, 26 Fla. 608; 8 Sou. Rep. 310.

* State v. Western Un., etc., Soc., 47 Ohio St. 167; 24 N. E. Rep. 392; State v. Fidelity, etc., Ins. Co., 49 Minn. 538; 41 N. W. Rep. 108; State v. Fidelity, etc., Co., 77 Ia. 648; 42 N. W. Rep. 509; State v. Fidelity, etc., Ins. Co., 49 Ohio St. 440; 31 N. E. Rep. 658.

51 Black on Judg., secs. 297, 303; Kemp v. Cook, 18 Md. 130; 79 Am. Dec. 681.

6 Ante, sec. 79.

Freeman on Judg., sec. 484a.

Post, sec. 85; Freeman on Judg., sec. 94; 1 Black on Judg., sec. 300. 9 Post, sec. 88.

10 Freeman on Judg,, sec. 95; 1 Black on Judg., sec. 299; Sawyer v. Cross, 65 Vt. 158; 26 Atl. Rep. 528.

11 Post, sec. 86.