State v. West Wisconsin Railway Co. , 34 Wis. 197 ( 1874 )

DixoN, C. J.

The only point urged in support of the demurrer, and the only question to be considered, is that pertaining to the jurisdiction of the court. The learned counsel for. tbe defendant argues very ingeniously, and with an industrious presentation of authorities, to show that this court has no jurisdiction of the action when the purpose is to vacate the charter or annul the existence of a private moneyed or commercial corporation. It seems to us that the argument is one of the kind which refutes itself by proving too much. The position of counsel, fairly stated, is, that section 8, art. VII of the constitution confers upon this court jurisdiction only of those cases which in ancient times were remediable by the writ of quo war-ranto, and not of those to which the information in the nature of quo warranto had been applied after the writ had fallen into disuse. This is in direct conflict with the decisions of this court in at least three cases, in which substantially the same position was taken and directly overruled. Attorney General v. Blossom, 1 Wis., 317; Attorney General v. Barstow, 4 id., 567; State v. Messmore, 14 id., 115. But, to proceed with the argument of counsel, his view is, that, as the writ of quo warranto had never been used to vacate the charter or annul the existence of a private moneyed or commercial corporation, because no such corporation had ever existed before the time the writ fell into disuse or was superseded by the information in the nature of quo warranto, therefore this court has no jurisdiction of the information in such case, it being one beyond the purview of the constitution or grant of power contained in it. Counsel argues that although the proceeding in form of information may be adopted, or that by civil action as a substitute, yet that thé class or classes of cases over which jurisdiction is conferred upon this court are limited to such as were the proper Subjects of the writ of quo warranto at the time that writ ceased to be used and the information took the place of it. The argument is founded altogether upon the use of the words “ writ of quo warranto” in the constitution, instead of the words “information in the nature of quo warranto,” and, if correct, would take us back for the period of five hundred years or there^-abóuts to ascertain the' class or classes of cases or particular subjects over which jurisdiction was given or intended by the clause of the constitution under consideration. It requires but á brief study of the history of this branch of the English law to show the burden assumed by the learned counsel were he to attempt to point out and fix the limits of the jurisdiction thus conferred upon the court; or to show the difficulties by which the court would be surrounded if it were compelled to solve the question and determine the extent of its own powers upon any such view or construction of the constitutional provision. It will be found that the whole subject is so veiled and hidden in the mists and clouds of antiquity that few courts or authors ever essay to give any explanation of it, and that no living lawyer or student, however versed in ancient law or antiquarian in his legal pursuits and studies, would be competent to unfold the problem or clear up the doubts and uncertainties by which it is on all sides beset. In the first place it will be learned that it is a point beyond the power of human reach or effort, to ascertain the time when the writ of quo warranto fell into disuse, and the information became a substitute for it in all cases. It can only be known that both are common law proceedings, and were in use at the same time, probably as early and perhaps much earlier than the thir-r teenth century. Most writers are entirely silent upon the subject, regarding it as one respecting which elucidation is imprac: ticable or impossible. The only author whose works have come under our observation and who attempts any explanation of it, is Mr. Tancred, whose learned and instructive treatise on The Law of Quo Warranto was published in London in 1880. In the introduction to his treatise, p. XVI, after having quoted from Braeton, ch. 19, “ On Eyres and Franchises,” and having shown the three classes of-persons holding franchises liable to, be proceeded against, and the three inodes of inquiry to be pursued respecting them before the justices in the court of eyre, the author says of the third class, that they “ were those who had not made claim, and who had been presented as holding franchises by the inquest of their bailiwick. In this last mode we seem to discover the origin of information in nature of a quo warranto. The use -of the presentment in eyre was to bring under the legal cognizance of the justices the fact that a franchise not claimed was held by an individual within their jurisdiction; the same is the office of the presentment, or indictment, or information in the court of King’s Bench.” The remarks of the author and nature of the proceedings are explained by the context, and the whole subject, as well as the causes which led to the enactment of the statute of quo warranto, 18 Edw. I, stat. 2, read by counsel on the argument, are macje quite intelligible in Reeve’s History of English Law, by Finlason, vol. 2, pp. 126-9, and vol. 1, p. 416 and following. See also Crabb’s History of English Law, pp. 174-5.

And again, at page 18, Mr. Tancred says that “ the power of the attorney general, and of his deputy, the master of the crown office, in respect to the filing of informations in the nature of quo warranto, equally with their powers of filing informations for misdemeanors in general, are derived from the common law.” And at page 15, speaking of the erroneous impression that the statute of 9 Anne (A. D. 1711), c. 20, originally conferred power upon the coroner to file such informations, the author observes: “ The records of the crown office leave no room to doubt, that informations were filed by the coroner anterior to that statute, even in cases directly within its provisions, which clearly shows that the latter statute did not first introduce these informations, but only made some regulations with respect to the prosecution of them. The act of the 9th of Anne extends only to the cases of individuals usurping offices or franchises in corporations, when the right of the body to act as a corporation is acknowledged; an information against the whole corporation, as a body, to show by what authority they claim to be a .corporation, can only be brought by and in the name of the attorney general.”

And the same writer’s remarks upon the statute, 18 Edward I., passed in the year 1290, are so illustrative of the hopelessness of the mission upon whioh the learned counsel would send the court in search of its jurisdiction under the constitution, that we are disposed to transcribe them at length as the best comment which can be made. The learned counsel himself only suggests doubts and suspicions respecting the jurisdiction, without pursuing the inquiry or pausing to assist the court out of the tangled web of antiquated precedents and distinctions into which it would inevitably be drawn by adopting his views. It is incumbent on counsel or court accepting such conclusion, to point out at least with some approach to clearness and precision the jurisdiction which the court has, or the class or classes of cases of which it will take cognizance. It is not enough, under such circumstances, to say that the case at bar is not one which was remediable by the writ of quo warranto, or to which that remedy was applied in the reign of Edward the First. Some regard must be paid to future cases, and to the condition in which the court will find itself when they shall arise, respecting the all important question of jurisdiction. It is not enough that the court is able to say that there existed no banking, insurance or railway corporations in England during the thirteenth and fourteenth centuries; but the court is, or would be on the theory of counsel, required to go farther, and determine precisely what rights, privileges, franchises and liberties, corporate or otherwise, were examinable and could be adjudicated on the writ at that distant period. But, to return to our author and his remarks, he says: “By the last clause of the Statutum de Quo WarraNto Novum, 18 Edw. I, the king, with a view to spare the costs and expenses of the people of his realm, granted ‘ that pleas of quo warranto should from thenceforth be pleaded and determined in the eyres of the justices ; and that the pleas then depending should be readjourned into their own particular shires until the coming of the justices into those parts. ’ The precise period of ike institution or cessation of the eyres seems unknown. Lord Coke charges with error in fonle et in fine those who supposed that Henry the Second did first institute the justices in eyre; or that they ceased in the time of Edward the Third. He ascribes to them an indefinite antiquity of origin, and shows that they ceased not at the time stated; for that after the reign of Edward the Third, they are mentioned as well known, and the institution as existing in practice; for it was enacted by act of parliament (in respect of the troubles and foreign affairs), that no eyres should be holden for two years ; and at a later period, in 16 R. II. (1393), that no eyre should be holden till the next parliament. One probable reason why it is difficult to ascertain the exact period of the extinction of the eyre, is that its decline was gradual; and the cause of that decline seems reasonably referred, by the same author, to the establishment of justices of assize; for, as their power’, by many acts of parliament, and the extent of the numerous commissions with which they were intrusted, increased, so that of the justices itinerant vanished away. Whenever the circuits of the justices in eyre ceased, the above provision in the statute of 18 Edw. I. necessarily lost its effect also; for, with justices in eyre this branch lived, and with them it died. The writ of quo warranto, therefore, in the same manner as before the passing of the statute, became returnable before the King’s Bench, and other courts at Westminster; and the same delays and expensive proceedings which had led to the enactment of the statute of Edward the First, were, it may be presumed, again experienced. Whether such considerations, or the conclusive character of the judgment, which was final even against the crown, occasioned the disuse of the proceedings upon the writ of quo warranto, and led to the substitution of that which has since prevailed, can now be only matter of conjecture. By abandoning the civil process and its long train of dilatory steps, and resorting to the criminal form of an information', a more expeditious decision of the suit was secured; and as the investigation, when the proceedings had assumed a criminal character, took place in the county where the franchises were situated, the object wbicb the legislature bad formerly in view was indirectly attained. Whatever the immediate cause of the change, and whenever it was brought about, the information was made and has been found to answer all the purposes which were effected by the proceedings under the old writ before the eyre."

And the observations of Lord Coke (2 Inst., 498, title, Sta-tutuM be Quo WareaNTO), referred to by the author and in part quoted, are useful as revealing-to some extent the darkness which surrounds the question. He says: “ As to the second point, that justices in eyre should cease in the raigne of Edward the Third, they have not onely erred in fonte, but in fine also, for they ceased not in the raigne of King Edward the Third, for it is enacted by act of parliament after that king’s raigne (in respect of the troubles and foreine affaires) that no eyres should be holden for two yeers; and after 16 R. 2, that no eyre should be holden until the next parliament; but thus much in a case so evident shall suffice. We have added thus much, not of curiosity, nor of a spirit of contradiction, but for two respects: the one, that when our historians do meddle with any legall point, or matter concerning the law, we would advise them that they would, before they write, consult with those that be learned and apprised in the laws of this realm ; the other, that truth might be manifested and prevail.”

Now if so great a luminary of the law and student and expounder of the ancient institutions of his country as Lord Coke, who wrote upwards of two hundred and fifty years ago, was in doubt and could not determine when the justices in eyre ceased, and consequently when1 the the writ of quo ivar-ranto fell into disuse (for we are informed that the writ was used, only during the continuance of that institution), how is it possible for any court or lawyer to determine the same question at the present day ? And if that question can not -be determined, how is it possible to «determine what pleas of quo warranto, or franchises or liberties, were cognizable under the writ at the time it ceased tobe used? We might stop here, and in the words of Lord Coke say; “ but thus much in a case so evident shall suffice.” It is a manifestly endless as well as fruitless pilgrimage in which counsel would engage the court; and the design of this investigation, since we have come to some preception and knowledge of the subject, has been, “not to let the light in but the darkness out,” — to make the darkness visible.

To accept the views of counsel would therefore be to say that this court has no definite or ascertainable jurisdiction under the grant of power contained in the constitution. The argument disproves itself, therefore, by proving too much; and it would be better, undoubtedly, to adopt the views advocated by counsel in the earlier cases in this court, namely, that the constitution reserved only the power to issue the ancient writ of quo warranto, which, as we have seen, ivas a civil writ at the suit of the crown, and ran for lands and tenements as well as franchises and liberties, and in some cases was a mere action for discovery, and was commenced by proclamation as well as by service of process, and which had been obsolete and wholly unknown in the English courts for nearly four hundred years before the constitution was framed. This would dispose of the whole question by showing that no jurisdiction could be exercised ; for no lawyer probably could prepare the writ and conduct the proceeding to a successful termination without personal access to the ancient entries in the crown office, which could not well be had.

The futility and unreasonableness of all such interpretations of the constitution are apparent. It is as impossible to believe that the framers of the constitution were looking back over the period of three or four hundred years into the middle ages, designing to give this court such jurisdiction, and only such, as was then exercised in virtue of the writ of quo warranto, as it is that they intended to confine the court to that antiquated and useless process. The framers of the constitution were practical men, and were aiming at practical and useful results. They used the words “ writ of quo warranto ” just as they had "been, used in common parlance, and "by courts, lawyers and writers for hundreds of years, as synonymous with “information in the nature of quo warranto,” which had so long been the complete and unqualified substitute for the writ. “ This (the information), is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the crown; but hath long been applied to the mere purposes of trying the civil right, seizing the franchise, or ousting the wrongful possessor ; the fine being nominal only.” 3 Black. Com., 263. By the statute of this state the fine may be something more than nominal. R. S., eh. 160, sec. 15 ; 2 Tay. Stats., 1812, § 21. And in the early and leading case in New York, The People v. Utica Ins. Co., decided in 1818," and reported 15 Johns., 358, in which the remedy by information was applied to one of these modern private moneyed or commercial corporations, we find Justice SPENCER using the following language: “An information in the nature of a quo warranto is a substitute for that ancient writ which 'has fallen into disuse; and the information which has superseded the old writ is defined to be a criminal method of prosecution, as well to punish the usurper by' a fine for the usurpation of the franchise, as to oust him, and seize it for the crown. It has for a long time been applied to the mere purpose of trying the civil right, seizing the franchise, or ousting the wrongful possessor, the fine being nominal only. 2 Inst., pl. 12; 3 Burr., 1817; 4 Term Rep., 381; 1 Bulst., 55.” Now it was with a view to this well known jurisdiction, then and long before exercised only in the proceeding by information, that the framers of the constitution gave or reserved the power to this court, using for convenience and brevity merely the words “writ of quo warranto," just as those words were used by Chancellor Kent in Attorney General v. Utica Ins. Co., 2 Johns. Ch., 371, 376, and as they had been used by other courts and writers times without number, and as they are still even used in our own statute (R. S., oh. 160, sec. 1; 2 Tay. Stats., 1807, §1), as meaning the same thing and intended to convey the same general idea as the words, “information-in the nature of quo warranto.”

We are aware that a different interpretation has been given to a like clause in the constitution of the state of Arkansas and also of Missouri. State v. Ashley, 1 Ark., 279; S. C., id., 513. See also State v. Real Estate Bank, 5 Ark., 595; State v. Johnson, 26 id., 281; State v. St Louis Ins. Co., 8 Mo., 330; State v. Stone, 25 Mo., 555. The earlier cases in Missouri held the rule which we adopt. State v. Merry, 3 Mo., 278; State v. McBride, 4 id., 303. And such, we think, is-the almost universal American doctrine. See State v. Gleason, 12 Fla., 190. Of the case's still adhering to the distinction between the writ and the information, that first above cited is much the best reasoned and most elaborate; but after a careful perusal of the arguments and the opinion, it seems to us that counsel for the motion, which was. overruled, were sustained by much the stronger reasoning. In Pennsylvania,- it appears, that there is a statutory writ of quo warranto in many respects resembling the ancient one. Commonwealth v. Burrell, 7 Pa. St., 34.

The main constitutional objection -being- thus disposed of, -if indeed the same was not effectually so by the former decisions of this court, it only remains to consider some minor points and objections adduced by counsel and which were supposed to favor and give greater force to this main one.

The eighteenth section of the statute regulating proceedings in quo warranto (R. S., ch. 150; 2 Tay. Stats., 1812, § 24), provides that when judgment of forfeiture ór dissolution shall be rendered against a corporation, “ the court shall have the same power to. restrain the corporation, to appoint a receiver of its property, and to take an account, and make distribution thereof among its creditors, as are given by law.” It is objected that this provision, so far as it is applied or .intended to be to this court, is wholly invalid, because under the constitution no original equity jurisdiction, except to issue the writ of injunction, is or can be conferred upon this court. We are not disposed to take issue with counsel upon this point, though several years ago jurisdiction was in fact assumed under this clause, and receivers appointed, and the property and assets of several disfranchised and dissolved banking corporations distributed by judgment of this court. This was done without the point being brought to the attention of the court; and when afterwards a motion was made to set aside one of those judgments for want of jurisdiction, the course of decision and opinion pronounced by the court was such as to indicate very clearly that it was considered by the judges to have been error to assume the jurisdiction in the first place. State of Wisconsin v. Waupaca Co. Bank, 20 Wis., 640.

Assuming, and we concede, that this original equitable power cannot be conferred upon this court, counsel argues against its jurisdiction to pronounce judgment of disfranchisement or forfeiture, because of the most unhappy and disastrous consequences which he thinks must follow to the creditors and stockholders of the corporation. Counsel -supposes, upon the rendition of judgment of dissolution or of forfeiture or ouster, without original equitable power in this court to appoint a receiver, and take an account, and make distribution of the property among creditors and stockholders, that the personal property of the corporation will all go to the state, and the real revert to the original owners, according to the ancient rule of the common law. He also argues that this would be in contravention of the constitution of the United States, as violating the obligation of contracts. If it were possible for any such results to follow in this state, it will be found that this court would fully agree with counsel upon the constitutional question, by referring merely to the case of Whiting v. R. R. Co., 25 Wis., 206, where the same authorities are cited which are relied upon by counsel.

But the apprehensions of counsel are wholly unfounded, and the evils he anticipates purely imaginary. All have been foreseen and provided against by the legislature as fully and amply as in any of those states to whose statutes counsel referred ; and the time never was in this state or territory when any such results could follow. To show that there can be no mistake about this, we quote the statutes now found as secs. 8 and 9, ch. 78, R S. 1858 (1 Tav. Stats., 1028, §§ 8, 9), as follows : Section 8. “ All corporations whose charters shall expire by their own limitation, or shall be annulled by forfeiture or otherwise, shall nevertheless continue to be bodies corporate for the term of three years after the time when they shall have ■been so dissolved, for the purpose of prosecuting or defending actions by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property, and to divide their capital stock, but not for the purpose of continuing the business for which such corporations may have been or may be established.” Section 9. “ When the charter of any corporation shall expire or be annulled, as provided in the preceding section, the circuit court of the county in which such corporation carries on its business, or has its principal place of business, on application of any creditor of such corporation, or of any stockholder or member thereof, at any time within said three years, may appoint one or more persons to be receivers or trustees for such corporations, to take charge of the estate and effects thereof, and to collect the debts and property due and belonging to the corporation, with the same powers, and who shall perform the same duties, as receivers appointed as provided by law upon the voluntary dissolution of corporations; and the power of such receivers may be continued beyond the said three years, and as long as the court shall think necessary.” The same provisions were contained in the revised statutes of 1849, and prior thereto in the territo■rial statutes of 1839. R. S. 1849, ch. 54, secs. 8, 9; Statutes 1839, p. 146, §§ 2, 3. In view of these statutory provisions, •therefore, these last named objections of counsel vanish, and there remains nothing in the way of the full exercise of its jurisdiction by this court, unless it shall be found that another point taken by counsel is insuperable.

It is urged that the remedy by mandamus would be proper to compel the defendant to relay its track. If it be granted that such writ would lie, yet it is not seen why it is not equally a violation of its charter, or of the law which the company is bound to obey, for it to refuse to restore the track and run its trains, even though no mandamus be applied for. If we say nothing about the special remedy by quo warranto which the attorney general was authorized and required to use by chapter 31, Laws of 1873, and which he has or might have employed in this case, there still exists the general law, several of the provisions of which are directly applicable to and will sustain this action. R. S., ch. 160, sec. 4, subds. 1, 2, 4; 2 Tay. Stats., 1808, § 8. It is not perceived, therefore, how the jurisdiction of the court can be affected because there may exist some other remedy to compel a performance of the act, the omission to perform which is complained of and shown to be a violation of the charter of the company, or an abuse of its privileges which the law declares shall work a forfeiture.

By the Court. —Demurrer overruled.