State ex rel. Gibbs v. Mayor of Somers Point , 49 N.J.L. 515 ( 1887 )

The opinion of the court was delivered by

Scudder, J.

The distinction between an information in the nature of a quo warranto by the attorney-general, ex officio, and without leave, in behalf of the state or sovereign, and an information of like nature in behalf of private relators, by leave of the court, has been frequently stated in judicial decisions and seems to be well established. The statute of 9 Anne, c. 20, which has been adopted, in substance, by our statute of March 17th, 1795 (Rev., p. 905), and made more speedy and effectual in its operation by the act of May 9th, 1884 (Rev. Sup., p. 819), refers to the latter remedy against usurpers and intruders into office at the relation of any person or persons desiring to sue or prosecute the same with the leave of the court; while the former proceeding is a common law vindication of the sovereign prerogative to grant franchises, to oust all who usurp them without legal authority, and forfeit such franchises when illegally obtained or exercised, on the mere motion of the law officer who represents the sovereign or state. This information by the attorney-general is the successor oUthe ancient original writ of quo warranto, called the king’s writ of right for franchises and liberties, which has become obsolete. We find an early statement of the construction and application of the statute of Anne in 3 Bac. Abr. 644: “This act extends only to individuals usurping offices and franchises in a corporation, and not to the corporation itself as a body; if a corporation, as a corporation, usurp upon the crown, the information must be by and in the name of the attorney-general in behalf of the crown.” It cites Rex v. Carmarthen, 2 Burr. 869; S. C., 1 W. Bl. 187. In the latter report of the case it is said Lord Mansfield put this question: “ Whether an informer has a right to come into this court to demand a trial whether or no any corporation in the kingdom is dissolved ? ”

In conformity with this interpretation of the statute, informations at the instance of private relators have only been used against officers in corporations, and not against the corporate bodies themselves. In every case where the question has been raised, it has been held that the information will not lie on the-relation of an individual against a corporation as a body, and that this should always be in the name of the attorney-general alone. Rex v. Ogden, 10 B. & C. 230; King v. White, 5 Ad. & E. 613 ; King v. Parry, 6 Ad. & E. 810 ; Rex v. Cusike, 2 Rolle 113, 115; People v. Richardson, 4 Cow. 97, 109; 6 Com. Dig. tit. “Quo Warranto” (C. 3).

This difference in the form of procedure has been commented on and recognized in the courts of our state. State v. Paterson and Hamburg T. Co., 1 Zab. 9; State v. Utter, 2 Green. 84; State v. Brown, 2 Vroom 355; State v. Tolan, 4 Vroom. 195 ; Attorney-General v. Del. and Bound Brook R. R. Co., 9 Vroom 282 ; Nat. Dock R. Co. v. Central Railroad, 5 Stew. Eq. 755; Terhune v. Potts, 18 Vroom 218 ; Stout v. Zulick, 19 Vroom 599.

Although in some cases leave has been given to file an information in the nature of a quo warranto at the instance of ', a private relator against persons claiming to be officers of corporations, where the effect of an ouster by the judgment of the-court might incidentally defeat the corporation in its action and purpose, yet in no case has there been a direct proceeding, against the corporation to challenge its legal existence except in the name of the attorney-general alone, prosecuting the-action in the name of the state. This is alike the rule in cases against public and private corporations. 2 Dill. Mum. Corp., §§ 890, 894, 895; Field on Corp., §§ 452, 457; Ang. & A. on. Corp., §§ 733, 736.

If such be the law, then the formal joinder of the name of the attorney-general with the names of private relators in the prosecution of this information, and the call on both the corporation and its officers to show by what warrant they execute the franchises of a borough commission and of borough commissioners, are an attempt to use the two forms of information, in one proceeding. The pleading in this form is illegal, and the demurrer will be sustained.