sidered that there were other adequate remedies, by removal or prosecution, which would have made quo warranto improper, even though the action of the mayor had ipso facto forfeited his office.

§ 19. Against municipal corporations. In the early English cases of quo warranto, one of its familiar uses was to enforce the forfeiture of charters of municipalities for the wrong doings of their officers. Municipal corporations were considered to a much greater degree than they are with us much like private corporations. The courts in this country, however, have taken the view that municipal charters are not conferred for the benefit of those holding office under the municipality, but for the benefit of the people living within the territory included under the charter. Accordingly they have refused to declare forfeited the charter of a municipality because of the wrongful acts of its officers. Quo warranto is, however, often used to test the legality of the charter itself; but there is difference of opinion as to whether the action should be brought against the corporation in its corporate name, or whether it should be brought against the inhabitants as unlawfully assuming to be a corporation. And, although it may be used to oust a city from exercising a franchise not granted in the charter, it may not be used to oust it from the exercise of every irregular act of power. Thus, in State v. Lyons (17) an information in the nature of a quo warranto was filed asking that the city show by what authority a certain ordinance vacating a certain street in the city was passed. The court said:

"From this it is apparent that the city is clothed with the power to vacate streets, and, therefore, when the council passed the ordinance in question they did not exercise powers not conferred by law. But, at the most which can be made from all the statements of the information, they were exercising a power conferred by law in an improper and irregular manner. The statute does not authorize this proceeding for a mere irregular exercise of a conferred power, although such irregularity may be sufficient, when tested, to vitiate or render void the act done.”

§ 20. Against private corporations. There are a great number of cases in this country where quo warranto has been used to oust a private corporation from exercising some franchise not authorized by law. Thus in the case of People v. Utica Insurance Co. (18) the company had been doing a business in issuing notes, receiving deposits, making discounts, and transacting other business which incorporated banks might do by virtue of their charters, despite a restraining act of 1804 passed to prevent any unauthorized or unincorporated association from banking. It was claimed that the right of banking was not such a right as could not have been exercised except by grant from the king of England, and that accordingly it was not a franchise, the usurpation of which could have been corrected by quo warranto. But the court said: "Taking it for granted for the present, for the purpose of considering whether the remedy adopted is appropriate, that the defendants have exercised the right of bank

ing without authority and against the provisions of the restraining act, they have usurped a right which the legislature has enacted should only be exercised and enjoyed by authority derived from them. The right of banking, since the restraining act, is a privilege of immunity subsisting in the hands of citizens by grant of the legislature. The exercise of the right of banking, then, with us, is the assertion of a grant from the legislature to exercise that privilege; and consequently it is the usurpation of a franchise, unless it can be shown that it is a privilege granted by the legislature."

§ 21. To enforce a forfeiture of charter. Quo warranto is much more commonly used to enforce the forfeiture of a charter than to enforce the forfeiture of office, although much the same principles apply. In the case of Commonwealth v. Commercial Bank (19) quo warranto was brought to forfeit the bank's franchise for having dealt in promissory notes contrary to the express provisions of its charter, and because of having taken a higher rate of interest than allowed in its charter. The court said: "The question is not whether a single act or series of acts of misuser, through inadvertence or mistake, may work a forfeiture, but whether the constant and wilful violation of these important conditions of the grant produce that effect. Mr. Justice Story, in delivering the opinion of the Supreme Court of the United States in Mumma v. Potomac Company (20), held that a corporation by the very terms and nature of its political ex

(19) 28 Pa. St. 383.

istence is subject to dissolution by forfeiture of its franchise for wilful misuser or non-user. Many years before that decision was pronounced, the same principle was fully recognized by the same high authority in Truett v. Taylor (21), where the right of forfeiture for misuser or non-user was held to be the common law of the land and a tacit condition annexed to the creation of every corporation. It is now settled by numerous authorities that it is a tacit condition of a grant of incorporation that the grantees shall act up to the end or design for which they are incorporated; and hence, through neglect or abuse of its franchise, a corporation may forfeit its charter as for condition broken or for a breach of trust."

§ 22. To oust foreign corporations from doing business in the state. In the case of State v. Insurance Co. (22) quo warranto was brought to try the right of the company, a New York corporation, to carry on in Minnesota the business of insurance against three classes of risks, viz., injury or death of persons caused by accident, breach of trust by persons holding places of public or private trust, and the breakage of plate glass. The court said: "A state has the power of a sovereign to prohibit foreign corporations from exercising their franchises, carrying on their ordinary corporate business, within its borders; and when, in defiance of such prohibition and contrary to our law, a foreign corporation does assume to exercise corporate franchises in a manner affecting the public interest, quo warranto will lie for the purposes

(21) 9 Cranch, 43.

of determining the right in question and of applying a remedy, although it is true that the writs of a state have no power to affect by their judgments the corporate existence of foreign corporations. We can restrain the exercise, within our own jurisdiction, of corporate franchises inconsistent with our own sovereignty, whether the corporation whose actions are in question be domestic or foreign."

§ 23. To try title to corporate office. It does not seem that in England the title to an office created by the charter of an educational institution can be tried in quo warranto (23). The ground the English courts give is that it is not a public office. But most of the courts of this country have followed a different rule. In Commonwealth v. Arrison (24) quo warranto was asked against certain persons exercising the office of "Trustees of the Ninth Presbyterian Church in Philadelphia." The court said: "To establish it as a principle that no information can be granted in cases of what the counsel call private corporations might lead to very serious consequences. Perhaps it may be said that banks, turnpike, canal, and bridge companies, are of a public nature; but yet they have no concern with the government of the country or the administration of justice. They are no further public than as they have to do with the great numbers of persons. But if numbers alone is the criterion, it will be often difficult to distinguish public from private corporations. Let us consider churches, for example: in some,