Quo warranto will also lie for the purpose of ousting an incumbent whose title to the office has been forfeited by miscon duct or other cause. And in such a case it is not necessary that the question of forfeiture should ever before have been presented to any court for judicial determination, but the court, having jurisdiction of the quo warranto proceeding, may determine the question of forfeiture for itself.' The question must, however, be judicially determined before he can be ousted. "And if the alleged ground for ousting the officer," says VALENTINE, J., "is that he has forfeited his office by reason of certain obliged to resort to quo warranto to test the title to the office. A distinction is there made between the cases where applications had been made to be admitted to an office by proceed. ings on mandamus, and the case there decided, where the petitioner only sought for a certificate of his election, like the case of Marbury v. Madison, 1 Cranch 168-9, and The King v. The Mayor of Oxford, 6 A. & E. 349 (33 E. C. L. 89), where it was said that the certificate was only one step toward the completion of the title. The court also in Strong's Case admitted that the two processes might be necessary to enable the petitioner to get possession of the office,-the one establish the legality of his election, the other to set aside that of the incumbent, and that although they were independent of each other, they might have been applied for at the same time and proceeded pari passu. The court arguendo claimed that there are authorities in support of the doctrine that mandamus is the appropriate remedy where there is an actual incumbent acting de facto, but the decision of the court is not based upon that ground, and is not authority to the extent claimed in Conklin v. Aldrich, 98 Mass. 558, where it is referred to. The general tenor of the decisions from Massachusetts recog nize and adopt the rule rather than the exception to it. Attorney-General v. Simonds, 111 Mass. 256. It is a fundamental principle that mandamus can be used only to compel the respondent to perform some duty which he owes to the petitioner, and can be maintained only on the ground that the petitioner has a present, clear, legal right to the thing claimed, and that there is a corresponding duty on the part of the re spondent to render it to him. If therefore, as in the case at bar, the two persons are claiming the title to office adversely to each other, the respondent being in possession and exercising the duties pertaining to that office de facto under color of right, mandamus will not lie to compel the admission of the petitioner, or to determine the disputed question of title." Commonwealth v. Walter,83 Penn. St. 105, 24 Am. Rep. 154; State v. Collier, 72 Mo. 13, 37 Am. Rep. 417; State v. Wilson, 30 Kans. 661; Dullam v. Willson, 53 Mich. 392, 51 Am. Rep. 128. 2 Commonwealth v. Walter, 83 Penn. St. 105, 24 Am. Rep. 154; State v. Wilson, 30 Kans. 661; State v. Allen, 5 Kans. 213; State v. Graham, 18 Kans. 136. acts or omissions on his part, it must then be judicially deter mined, before the officer is ousted, that these acts or omissions of themselves work a forfeiture 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 action of quo warranto is commenced." The § 479. Will not lie where Position is not a public Office.The State does not inquire by quo warranto into the title to a position which is not a legally authorized public office. right to a mere employment must be tested by other means.* What are public offices, and how they are distinguished from mere employments has been already considered in an earlier portion of this work, and further illustrations will be given in the following section. in Courts are also averse to granting leave to file an information quo warranto, where the office in dispute is a petty and insignificant one. So "although the statute says the information may be filed against 'any person' usurping office in 'any corporation' created by authority of this state, yet there must be very many cases in which the court would be at liberty to refuse to listen to the controversy. When the proprietors of a country store, or the members of a village library association, or the participants in a district school debating society, or an association of musical amateurs, may incorporate themselves under our general laws, and establish various grades of offices for the purposes of organization, it can scarcely be seriously urged," says COOLEY, J., "that the supreme court can be required to settle all their contested elections and appointments in this proceeding. There are grades of positions denominated offices which do not their 'Citing Cleaver v. Commonwealth, State v. North, 42 Conn. 79; State 34 Penn. St. 283; Brady v. Howe, 50 v. Dearborn, 15 Mass. 125. Citing above authorities and State . Hixon, 27 Ark. 398, 402. People v. DeMill, 15 Mich. 164; Anonymous, 1 Barn. K. B. 279. rise to the dignity of being entitled to the notice of the attorneygeneral by information." And in a later case' the same judge says that "it is at least doubtful whether the proceeding by nformation is applicable to the case of any office not created by the State itself." § 480. Same Subject-What are Offices within the Rule.— Illustrations of what are, and what are not offices, have been already given, but a brief statement will here be made of some of the positions which have been deemed public offices for the purposes of quo warranto proceedings. 4 Thus the following officers have been subjected to inquiry:governor, lieutenant-governor, except where the jurisdiction is solely in the general assembly,' sheriff," deputy sheriff,' county clerk, county treasurer,' judge of probate," circuit judge," presiding officers of legislature," directors of asylums," an officer in a railroad company who is appointed by the State," tax collector, commissioner of highways, commissioners to locate a county seat, lay out state roads and the like," assessors, school district clerk," mayor of city, school director," city marshal." So the title of military officers is also open to inquiry upon this proceeding. 23 1 People v. De Mill, 15 Mich. 164. Throop. Langdon, 40 Mich. 673. 3 Attorney-General v. Barstow, 4 Wis. 567. State v. Gleason, 12 Fla. 265. 5 Robertson v. State, 109 Ind. 79. People v. Mayworm, 5 Mich. 146; Commonwealth v. Walter, 83 Penn. St. 105, 24 Am. Rep. 154; People v. Cicott, 16 Mich. 283, 97 Am. Dec. 141. 7 State v. Goff, 15 R. I. 505, 2 Am. St. Rep. 921. 8 People v. Miles, 2 Mich. 348. Clark v. People, 15 Ill. 217. 10 People v. Heaton, 77 N. C. 18. 11 Commonwealth v. Gamble, 62 Penn. St. 343, 1 Am. Rep. 422. "Clark . Stanley, 66 N. C. 59; Howerton v. Tate, 68 N. C. 547. "Nichols . McKee, 68 N. C. 429; 20 16 18 Welker v. Bledsoe, 68 N. C. 457; State v. Harrison, 113 Ind. 434, 3 Am. St. Rep. 663. "Howerton v. Tate, 68 N. C. 547. "Patterson v. Hubbs, 65 N. C. 119; Hyde v. State, 52 Miss. 665; People v. Callaghan, 83 Ill. 128. "People v. Hurlbut, 24 Mich. 59,9 Am. Rep. 103. "People v. Hurlbut, supra. 1 State v. Hammer, 42 N. J. L. 435. "State v. Jenkins, 46 Wis. 616 * People v. Thacher, 55 N. Y. 525, 14 Am. Rep. 312; Commonwealth . Jones, 12 Penn. St. 365. "State v. Boal, 46 Mo. 528. "State v. Lupton, 64 Mo. 415, 27 Am. Rep. 253. " State v. Brown, 5 R. I. 1; Com. monwealth v. Small, 26 Penn. St. 31. § 481. Same Subject-What are not Offices.-But the following are not public officers within this rule:-chief engineer of a railroad,' or other officers of a corporation elected by the directors,' a clerk in a municipal office, a college professor, a pilot," special commissioners, appraisers, referees and the like, and many others mentioned in a preceding chapter." 8 482. Possession and User of the Office must be shown.— It is indispensable to the jurisdiction in quo warranto that the respondent should be shown to have been in the actual possession and user of the office. It is not enough that he should claim the office, but an actual user must be shown." "But that which constitutes a sufficient user," says Mr. STEPHEN, "depends upon the nature of the office or franchise claimed; thus, where it appeared in the case of a freeman or free burgess of a corporation, that he had been sworn in, though no act or claim be stated to have been done or made by the defendant, the information was granted; and though a mere claim to be sworn in is no usurpation, yet a swearing in, though defective in law, may be; and where a defendant has taken the oath in such a way as he thought to be sufficient at the time to make him a free burgess, it was considered to be an Hence it is held that the taking of the oath within the time prescribed by law is a sufficient user, though the respondent has not actually performed the duties of the office.10 user." So where a person, who has been duly elected to an office and has qualified and taken possession of it, commits such acts while in the office as to work a forfeiture of it, he may be proceeded against by quo warranto, even though at the time he has practically abandoned the office but without resigning his claim to it." § 483. Is a civil Proceeding.-Though originally regarded as Eliason v. Coleman, 86 N. C. 235. 2 People. Hills, 1 Lans. (N. Y.) 202; Burr v. McDonald, 3 Gratt. (Va.) 215. Throop v. Langdon, 40 Mich. 673. Wis. 124. Dean v. Healy, 66 Ga. 503. • Matter of Hathaway, 71 N. Y. 238, 244. See ante, Book I. chap. II. 3 Stephen's Nisi Prius, 2441. 11 State v. Graham, 13 Kans. 136. a criminal proceeding, the remedy by information has now come to be considered as a purely civil one, which, while partaking in some of its forms and incidents of the nature of criminal process, is yet a strictly civil proceeding, resorted to for the purpose of testing a civil right by trying the title to an office or franchise and ousting the wrongful possessor.1 $ 484. Is a discretionary Remedy.-The pursuit of the remedy by information in quo warranto is not ordinarily a matter of right but one resting in the sound discretion of the court, and in England since the statute of Anne' and in many of the United States it can only be filed, on the relation of a private individual, by leave of the court first had and obtained. In some of the States, however, such leave is not required. It may be 'High. Ex. Leg. Rem. § 603, citing State v. Hardie, 1 Ired. (N. C.) 42; State Bank v. State, 1 Blackf. (Ind.) 267; State v. Ashley, 1 Ark. 279; Lindsey v. Attorney-General, 33 Miss. 508; State v. Lingo, 26 Mo. 496; State v. Stewart, 32 Mo. 379; State v. Lawrence, 38 Mo. 535; State v. Kupferle, 44 Mo. 154, 100 Am. Dec. 265; Commonwealth v. Birchett, 2 Va. Cas. 51; Attorney-General v. Barstow, 4 Wis. 567; Commonwealth v. Commissioners, 1 S. & R. (Penn.) 382; Commonwealth v. McCloskey, 2 Rawle (Penn.) 381, opinion of GIBSON, C. J.; State v. Price, 50 Ala. 568; State v. DeGress, 53 Tex. 387. Contra, in Illinois; Donnelly . People, 11 Ill. 552, 52 Am. Dec. 459; People v. Railroad Co. 13 Ill. 66; Wight v. People, 15 Ill. 417; Hay v. People, 59 Ill. 94. See also Osgood v. Jones, 60 N. H. 543; Ames v. Kansas, 111 U. S. 449; Foster o. Kansas, 112 U. S. 201. 2 Rex v. Dawes, 4 Burr. 2120; Rex v. Martin, 4 Burr. 2122; King v. Hythe, 5 A. & E. 832; King v. Peacock, 4 T. R. 684; King v. Stacy, 1 T. R. 1; Rex v. Sargent, 5 T. R. 467; Rex v. Parry, 6 Ad. & E. 810. People v. Waite, 70 Ill. 25; People v. Moore, 73 Ill. 132; People v. Callaghan, 83 Ill. 128; People v. Railroad Co. 88 Ill. 537; Commonwealth . Cluley, 56 Penn. St. 270, 94 Am. Dec. 75; Commonwealth v. Jones, 12 Penn. St. 365: State v. Tolan, 33 N. J. L. 195; Commonwealth v. Reigart, 14 Serg. & R. (Penn.) 216; Commonwealth v. Arrison, 15 Serg. & R. 133; People v. Sweeting, 2 Johns. (N. Y.) 183; State v. Schnierle, 5 Rich. (8. C.) 299; State v. Fisher, 28 Vt. 714; State v. Smith, 48 Vt. 266; People v. Keeling, 4 Col. 129; State v. Bridge Co. 18 Ala. 678; State v. Mead, 56 Vt. 353. ♦ Informatious in Michigan may be filed in the Supreme Court by the Attorney-General to test the title to public office, either upon his own relation or upon the relation of any private party, without applying for leave. How. Stat. § 8635. See People v. Knight, 13 Mich. 230. Informations may be filed in the circuit courts by the prosecuting attorney on his own relation or that of any citizen of the county, without leave, or by any citizen of the county alone on obtaining special leave. How. Stats. § 8662, subsection 2. See |