the congregation is very numerous, in others very small; how is the court to make the distinction? If you say that the court has the right in both cases to grant or deny the information, according to its opinion of its expediency, there is no difficulty as to the right; but, if it be alleged that there is a right in one case and not the other, the difficulty will be extreme. I strongly incline to the opinion that, in all cases where a charter exists and the question arises concerning the exercise of an office claimed under that charter, the court may, in its discretion, grant leave to file an information; because in all such cases, although it cannot be strictly said that any prerogative or franchise of the commonwealth has been usurped, yet, what is much the same thing, the privilege granted by the commonwealth has been abused."

§ 24. Against servants of corporations. But quo warranto will not issue against a mere servant of a corporation, one whose office is not fixed by the charter itself. Thus, in Commonwealth v. Dearborn (25) an information in the nature of a quo warranto was asked against certain persons usurping the office of managers of a lottery granted to the proprietors of Kennebeck bridge, but the court determined "that the defendants, as managers of a lottery granted to a corporation and appointed to the trust by the corporation, were not such officers as were liable to the process which had been instituted in their case. They were the private officers or servants of the corporation and removable by it at pleasure, or at least for good cause.'

(25) 15 Mass. 125.

§ 25. Discretion in granting. In State v. Leatherman (26) quo warranto was asked by the attorney-general to test the validity of the charter of the town of Arkansas City. The court said that it was universally recognized that the courts had considerable discretion in granting the writ where private persons asked for it, but that several American courts and distinguished jurists had gone a step further and applied this discretion to proceedings on the part of the state herself. It pointed out the evils of overturning a municipal corporation long acquiesced in by the public and concluded that "the state herself may, by long acquiesence and by the continued recognition through her own officers-state and countyof a municipal corporation, be precluded from an information to deprive it of franchises long exercised in accordance with the general law. The case made by the answer shows an acquiescence for nearly nine years, and a recognition by the governor, county court, county clerk, county collector, and the whole of a population now over a thousand. If the answer be true, the corporation of Arkansas City should not now be held null and void."

§ 26. To whom granted, and interest required. Information in the nature of a quo warranto is brought in the name of the state, that is, the name of the state appears as the first party in the title of the action, and, when brought by the attorney-general, is allowed as a matter of course, except where, as in preceding case, long acquiescence of some other reason would create great hardship. It may also be granted to a private person

(26) 38 Ark. 81.

who is called the relator, but it is not granted as a matter of course and the private person must show some interest that will entitle him to have the action brought. Thus, in Commonwealth v. Cluley (27) where quo warranto was asked by the unsuccessful candidate for sheriff of Alleghany county (who had been defeated by almost seven thousand votes), on the ground that Cluley was ineligible to the office, it was held that the relator had no such interest as would entitle him to the action. Even if Cluley were ineligible that would not mean that the relator was elected, as there must be a plurality of votes, and the votes cast for an ineligible candidate are not generally treated as nullities. See Public Officers, § 24, elsewhere in this volume. But in the case of municipal officers it is generally held that any citizen or tax payer has a sufficient interest to entitle him to the action. In the case of an action to oust a corporation from its franchises, however, a very definite interest may be required. Thus in People v. North Chicago Railway Company (28) quo warranto was asked to keep the company from operating its road beyond the limits of Chicago and from using steam power within the city, on the ground that the act authorizing it to do so was unconstitutional. The relator stated that he was the owner of real estate contiguious to one of the streets upon which the company was, as he claimed, unlawfully operating its railroad, but the court said: "It is here shown that Jones is an inhabitant of the town in which the road is being oper

(27) 56 Pa. St. 270.

(28) 88 Ill. 537.

ated, and the owner of real estate therein; but it is not shown that he is, either specially as an individual or in common with all the other citizens of the town, injured by the construction and operation of the road."

SECTION 4. CERTIORARI.

§ 27. Nature. The writ of certiorari has sometimes been termed a writ of review. Like prohibition, and unlike mandamus, it lies to courts of inferior jurisdiction or to persons exercising judicial or quasi judicial functions. Unlike prohibition, however, it is not a preventive but a corrective measure. Prohibition lies to prevent further usurpation of authority, certiorari issues as a rule only after final judgments. Its purpose is to obtain the record from the inferior tribunal, and to correct at least jurisdictional errors appearing therein.

§ 28. To review questions of jurisdiction. Certiorari does not lie merely to determine whether the subject matter acted upon was entirely outside the jurisdiction of the inferior tribunal, as, for instance, whether a justice of the peace had attempted to try a man for murder. Thus, in State v. Moniteau County Court (29) it was required by law that a petition for a liquor license filed in a county court should contain the signatures of a majority of the assessed, resident, taxpaying citizens; and the court held that this requirement was one going to the jurisdiction of the court which might be reviewed by certiorari. It said: "The true function of this common law writ is generally to prevent inferior tribunals, where there is no appeal or writ of error, from exceeding their jurisdic

(23) 45 Mo. App. 387.

tion; but it is not confined to cases where there is an entire want of jurisdiction; it may be resorted to where having jurisdiction, the tribunal makes an order exceeding its powers."

§ 29. To review questions of law. In many states the courts have gone even further in outlining the scope of certiorari and have held it to lie to review all questions of law, whether going to the jurisdiction or not, where neither appeal nor error would lie. Thus, in Farmington Water Power Company v. County Commissioners (30) where certiorari was asked to quash the proceedings of the commissioners in refusing to abate a town tax assessed upon the petitioner, the court said: "The court is bound to determine, upon an inspection of the whole record, whether the proceedings are legal or erroneous." But unless expressly authorized by statute to determine whether the decision of a point of fact was contrary to the weight of evidence, the court cannot review questions of fact. Thus, in the last case the court said: "A writ of error lies only to correct errors in law and not to review the decision of a question of fact upon the evidence introduced at the hearing in the inferior court."

§ 30. Issued only to review judicial or quasi judicial action. The distinction between quasi judicial action, where a board or sometimes a single officer has to weigh evidence and pass judgment on it much as in a regular judicial proceeding; and discretionary action, on the one hand, where an official exercises his shrewdness or foresight, and ministerial action, on the other, where but

(30) 112 Mass. 206.