the jurisdiction of the court in which the proceedings are pending and proceeds on the ground of equities affecting only the parties litigant, while a prohibition strikes at once at the very jurisdiction of the court. The former remedy affects only the parties; the latter is directed against the forum itself" (12). Of the two, injunction is immeasurably the more important.

§ 13. Reaches only judicial acts. The great weight of authority establishes the proposition that prohibition, though it may lie to a tribunal not strictly a court, is to be used only to restrain action judicial in its nature. Thus, in State v. County Court (13) prohibition was asked to restrain the justices of the county court and the commissioners appointed by the court and the contractor from further proceeding in the removal of the seat of justice of the county. The court said: "The duties of the county court are partly judicial, and in part merely administrative. In the exercise of that portion of their jurisdiction which is judicial in its nature, as in matters of probate, accounts, guardians, minors, lunatics, apprentices, and the like, in which an appeal is allowed to the circuit courts, the county courts are a branch of the judiciary of the state, and as much state courts as the circuit courts. And if the court were exceeding its proper jurisdiction in matters of this kind, or were proceeding judicially upon a misconstruction of a statute involving a question of jurisdiction in any suit pending between parties (though the county might be one of the parties), there is no doubt

(12)

High, Extraordinary Legal Remedies, sec. 763.

that prohibition might be granted, at the discretion of the court, at the instance of any one of the parties or even of a stranger to the suit. But the office of prohibition is to prevent courts from going beyond their jurisdiction in the exercise of judicial power and not of ministerial or merely administrative function; and in a case where the court errs on a question of jurisdiction, or in the construction of a statute, in the exercise of such judicial power as an inferior court. It will not lie to restrain a ministerial act, as the issuing of an execution, or the levying of a tax to repair county buildings; . nor against ministerial officers, such as tax collectors, commissioners to locate a county seat, or the like; nor to restrain the issuance of a commission by the governor.'

§ 14. Absence of other adequate legal remedy necessary. As with the other extraordinary remedies, prohibition is only granted where the ordinary legal remedies are inadequate. For instance, it does not ordinarily lie where the usual forms of appeal are available.

SECTION 3. QUO WARRANTO.

§ 15. Origin. Quo warranto is of very ancient origin, having been used as far back as Richard I against anyone who held any office or franchise of the crown, to inquire by what right he held it and to oust him from the same if he held it without right. It was frequently used against the great nobles and many were the complaints of the encroachments of the crown. Under the Stuarts this remedy was much used against municipal corpora

control of the crown. In the time of Charles I it was unsuccessfully used to forfeit the charter of Massachusetts. The old writ of quo warranto was one of a number of writs of right which were exceedingly technical in their operation; and probably in part for this reason it was early superseded by the information in the nature of a quo warranto, which was a criminal proceeding allowing not only the ousting of the usurper, but his punishment, at least by fine, as well; but although the form of an information is still generally retained in this country, quo warranto is seldom used here to impose a fine and is generally regarded as a civil action.

§ 16. To try title to office. Of its use in this country, High says: "It is doubtless due to the comparatively short tenure of most officers in this country, as well as to the method of popular elections which forms the distinctive feature of the American system, that the jurisdiction is more frequently invoked for the determination of disputed questions of title to public office, in this country, than for all other causes combined" (14). Unless some statutory substitute has been provided, quo warranto is the great means of trying title to an elective office where it is desired to go behind the face of the returns. For this purpose it has even been used to try the title of a person occupying the office of governor of a state, where the board of state canvassers had determined that he had received a majority of the votes and a certificate of election had accordingly been issued to him by the secretary of state. This was in the case of At

torney General v. Barstow (15). It was claimed, by analogy to the reasoning by which a governor is generally held free from the writ of mandamus, that to allow the writ would be to destroy the equality of the executive; but the court said that a clear distinction was to be made between the office and the person claiming to hold the office, and that the court could “sit, examine and decide upon the rights of contestants to the office of governor, and give judgment against one and for another, without breaking down or disturbing the executive department of the government." The court said it could not know "except by laborious, long-continued and systematic inquiry, all about the votes cast at the last election-whether there were any frauds or mistakes in the canvassing or return of votes that affected or destroyed the right of a person to an office." But quo warranto is not the proper method of trying the title to legislative office, as the constitutions make the houses of the legislatures the judges of the qualification and election of their members.

17. To establish right to office. Although quo warranto determines the title of the person against whom the action is brought, it did not at common law establish the right to the office of the one in whose interest the action was brought. This followed from the original purpose of the writ, i. e., to oust from office, not to decide an election contest. But this rule has been changed in many of the states, so that in those states the title of the relator is passed on as well as that of the one against

whom the action is brought. Where the latter refuses to give up the office on an adverse decision in quo warranto, it may be necessary to bring mandamus to compel the delivery of the records, property, etc., pertaining to the office, as quo warranto will not usurp the functions of mandamus.

§ 18. To enforce forfeiture of office. One of the old uses of quo warranto was to enforce forfeiture of office. But the purpose was to declare and enforce a forfeiture, not to remove for cause. Thus, in State v. Wilson (16), an action in the nature of a quo warranto was brought to oust the defendant from the office of mayor of Topeka on the ground of alleged acts and omissions affecting the enforcement of the liquor laws and the laws against bawdy houses and gambling houses. The court said: "If the alleged ground for ousting the officer is that he has forfeited his office by reason of certain acts or omissions on his part, it must then be judicially determined, before the officer is ousted, that these acts or omissions ipso facto and of themselves work a .rfeiture of the office. Mere misconduct, if it does not of itself work a forfeiture, is not sufficient. The court has no power to create a forfeiture, and no power to declare a forfeiture where none already exists. The forfeiture must exist in fact before the proceeding in quo warranto is commenced." In the case at hand, however, the court considered the statutes of the state to require a trial and conviction to work a forfeiture, and, as there had been none, held the action premature. In addition, it con