in a summary way to hear the affidavits, proofs, and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and thereupon to establish the election so complained of, or to order a new election, or make such order and give such relief in the premises as right and justice may appear to the said supreme court to require: Provided, That the said supreme court may, if the case shall appear to require it, either order an issue or issues to be made up in such manner and form as the supreme court may direct, in order to try the respective rights of the parties who may claim the same, to the office or offices or franchise in question; or may give leave to exhibit, or direct the attorney-general to exhibit, one or more information or informations in the nature of a quo warranto in the premises.*

IX. PROCEEDINGS TO COMPEL ISSUING DUPLICATE CERTIFICATES OF STOCK.

See ante 30 and 31.

(Laws of 1873, ch. 151.)

X. ACTIONS AGAINST THE USURPER OF AN OFFICE OR FRANCHISE.

(Title I. of ch. 16 of Code of 1880.)

125. Attorney-general may maintain action.

1948. The attorney-general may maintain an action, upon his own information, or upon the complaint of a private person, in either of the following cases :

1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, within the state, a franchise, or a public office, civil or military, or an office in a domestic corporation.

* Laws of 1825, p. 451, § 9, amended pursuant to the "act concerning the Revised Statutes," passed December 10th, 1828, § 15.

2. Against a public officer, civil or military, who has done or suffered an act, which by law works a forfeiture of his office.

3. Against one or more persons who act as a corporation, within the state, without being duly incorporated; or exercise, within the state, any corporate rights, privileges, or franchises, not granted to them by the law of the

state.

126. Proceedings when complaint names rightful incumbent.

1949. In an action, brought as prescribed in the last section, for usurping, intruding into, unlawfully holding, or exercising an office, the attorney-general, besides stating the cause of action in the complaint, may, in his discretion, set forth therein the name of the person rightfully entitled to the office, and the facts showing his right thereto; and thereupon, and upon proof, by affidavit, that the defendant, by means of his usurpation or intrusion, has received any fees or emoluments belonging to the office, an order to arrest the defendant may be granted by the court, or a judge. The provisions of title first of chapter seventh of this act apply to such an order, and the proceedings thereupon and subsequent thereto, except where special provision is otherwise made by law. For that purpose, the order is deemed to have been made as prescribed in section 549 of this act. Judgment may be rendered upon the right of the defendant, and of the party so alleged to be entitled; or only upon the right of the defendant, as justice requires.

127. Action triable by jury.

§1950. An action, brought as prescribed in this article, is triable, of course and of right, by a jury, in like manner as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act.

128. Assumption of office by person entitled.

§ 1951. Where final judgment is rendered, upon the right and in favor of the person so alleged to be entitled, he may, after taking the oath of office, and giving an official bond, as prescribed by law, take upon himself the execution of the office. He must, immediately thereafter, demand of the defendant in the action, delivery of all the books and papers in the custody, or under the control, of the defendant, belonging to the office from which the defendant has been so excluded.

129. Proceedings to obtain books and papers.

§ 1952. If the defendant refuses or neglects to deliver any of the books or papers, demanded as prescribed in the last section, he is guilty of a misdemeanor; and the same proceedings must be taken, to compel the delivery thereof, as are now or shall hereafter be prescribed by law, where a person, who has held an office, refuses or neglects to deliver the official books or papers to his suc

cessor.

130. Damages; how recovered.

§ 1953. Where final judgment has been rendered, upon the right and in favor of the person so alleged to be entitled, he may recover, in the same action, against the defendant, the damages which he has sustained, in consequence of the defendant's usurpation, intrusion into, unlawful holding, or exercise of the office.

131. One action against several persons.

§ 1954. Where two or more persons claim to be entitled to the same office or franchise, the attorney-general may bring the action against all, to determine their respective rights thereto.

132. When injunction may be granted.

§ 1955. In an action, brought as prescribed in subdivision third of section 1948 of this act, the final judgment, in favor of the plaintiff, must perpetually restrain the defendant or defendants, from the commission or continuance of the act or acts complained of. A temporary injunction to restrain the commission or continuance thereof, may be granted, upon proof, by affidavit, that the defendant or defendants enjoined have acted as a corporation, within the state, without being duly incorporated, or have usurped, exercised, or claimed, within the state, a franchise, liberty, or corporate right, not granted to them by law. The provisions of title second of chapter seventh of this act apply to such a temporary injunction, and the proceedings thereupon, except where special provision is otherwise made by law. For that purpose, the injunction order is deemed to have been granted as prescribed in section 603 of this act.

133. Final judgment in action for usurping office; fin e.

1956. In any other action, brought as prescribed in this article, where a defendant is adjudged to be guilty of usurping or intruding into, or unlawfully holding or exercising, any office, franchise, or privilege, final judgment must be rendered, ousting and excluding him therefrom, and in favor of the people or the relator, as the case requires, for the costs of the action. As a part of the final judgment, the court may, in its discretion, also award, that the defendant, or where there are two or more defendants, that one or more of them, pay to the people a fine, not exceeding two thousand dollars. The judgment for the fine may be docketed, and execution may be issued thereupon, in favor of the people, as if it had been rendered in an action to recover the fine. The fine, when collected, must be paid into the treasury of the state.

134. Actions to be brought in the name of the people.

§ 1984. An action, brought as prescribed in this title, except an action to recover a penalty or forfeiture, expressly given by law to a particular officer, must be brought in the name of the people of the state; and the proceedings therein are the same, as in an action by a private person, except as otherwise specially prescribed by law.

135. Judgment for costs may be taken against the people.

§ 1985. Where judgment is rendered, or a final order is made, against the people, in a civil action brought, or special proceeding instituted, in their name, by a public officer, pursuant to a provision of law, it must be to the same effect, and in the same form, as against a private individual, who brings a like action, or institutes a like special proceeding, except as otherwise specially prescribed by law. But an execution shall not be issued against the people.

136. Relator; when to be joined as plaintiff; compensation of attorney-general.

§ 1986. Where an action is brought by the attorneygeneral, as prescribed in this title, on the relation or information of a person, having an interest in the question, the complaint must allege, and the title of the action must show, that the action is brought upon the relation of that person. In such a case, the attorney-general must, as a condition of bringing the action, require the relator to give satisfactory security to indemnify the people, against the costs and expenses thereof. Where security is so given, the attorney-general is entitled to compensation for his services, to be paid by the relator, in like manner as the attorney and counsel for a private person.