66

§ 2920a. Remedy by quo warranto, generally considered. The writ of quo warranto and information in the nature of quo warranto were both common-law remedies. But the former has long been superseded in practice by the latter, which is now the usual proceeding both in English and American practice to oust a usurper from office.97 A proceeding by the people in the nature of quo warranto, for the purpose of trying the incumbent's title to office, is not an election contest," within the meaning of the Colorado Constitution, and statutes passed by the legislature, in obedience to the constitutional mandate relating to contested elections, do not deprive the courts of jurisdiction to inquire by quo warranto into usurpations and unlawful holdings of office.98 In North Dakota, the title to a county office may be tried either by the statutory mode of contest (Comp. Laws, §§ 1489-1501), or by a civil action in the nature of quo warranto, initiated by an official representative of the county, as provided by section 5354 et seq. of the Compiled Laws.99 In the exercise of its original jurisdiction, the Supreme Court, exercising its discretion, will issue the writ of quo warranto only when applied for as a prerogative writ, and where the question presented is one publici juris.100 An information in the nature of quo warranto is held to be the proper remedy for a city officer, who has been removed from office upon certain charges and findings made against him by the mayor, who the suit of the state, on information of the attorney-general. Cal. Civil Code, § 358; see, also, People v. Ravenswood, etc., Turnpike & Bridge Co., 20 Barb. 518; People v. Utica Ins. Co., 15 Johns. 358; 8 Am. Dec. 243; People v. Richardson, 4 Cow. 97. The proceeding must be against the corporation itself, not merely against the individual members. The State v. Taylor, 25 Ohio St. 279; State v. Barron, 57 N. H. 498. A proceeding in the nature of quo warranto may be brought against individuals for intrusion into public offices, and against private and public corporations for usurpation of franchises, or to oust them from the enjoyment thereof. State v. Tracy, 48 Minn. 497; People v. Gartland, 75 Mich. 143; State v. Atlantic Highlands, 50 N. J. L. 457; Griebel v. The State, 111 Ind. 369.

97 See Territory v. Ashenfelter, 4 N. Mex. 85; People v. Havird, 2 Idaho, 498; Bradford v. Territory, 1 Okl. 366; and see cases cited in preceding section.

98 People ex rel. v. Londoner, 13 Col. 304; and see People er rel v. Reid, 11 id. 138.

99 Butler v. Callahan, 4 N. Dak. 481.

100 North Dakota v. Nelson County, 1 N. Dak. 88.

has appointed a successor.101 But such proceeding will be dismissed, when filed against the incumbent of an office for the sole purpose of having a judicial determination as to who possesses the power of appointment to such office, it being apparent that the defendant will remain in office whatever may be the decision.102 In a proceeding by the state in the nature of a quo warranto to deprive a corporation de facto of its corporate charter and procure its dissolution on the ground of a want of substantial compliance with the statutory requirements in its formation, the corporation de facto is a necessary party, and making it such, with the averment that it is a corporation de facto, but not de jure, does not estop the state from questioning its corporate character. 103 A complaint in quo warranto against a tollroad company, alleging "that for more than six months last past defendant has had no franchise or right to demand or take toll," etc., does not admit that the defendant ever had a tollroad franchise.104 A proceeding in the nature of a quo warranto under the Alabama statute, for the dissolution of a corporation, is not a "civil action," and it is not necessary for the proceeding to be commenced by summons and complaint, nor that the relator should obtain the permission or any order from any court. The proceeding may be brought on the information of any person, giving security for the costs.105

101 State ex rel. v. Van Brocklin, 8 Wash. St. 557; State ex rel v. Kirkwood, 15 id. 298.

102 State ex rel. v. McCullough, 20 Nev. 154.

103 People v. Water Co., 97 Cal. 276; 33 Am. St. Rep. 172. Misjoinder of parties defendant in quo warranto proceedings. See Preshaw v. Dee, 6 Utah, 360.

104 People v. Tollroad Co., 100 Cal. 87.

105 Capital City Water Co. v. The State, 105 Ala. 406.

Vol. II-53

The plaintiff complains, and alleges:

I. That at the time hereinafter mentioned he was in the peaceable and actual possession of all that certain piece or parcel of land [describe the premises], and of the dwellinghouse, barns, and sheds thereon.

18.., and while

That on the ...... day of the plaintiff was so in possession of said land and premises, the defendant, with violence and a strong hand, and by force, entered thereon, and in a forcible manner ejected said plaintiff, and put him out of said lands and tenements, and broke the doors and windows of said house, and tore down and destroyed said barn and sheds [set out the facts showing a forcible entry], contrary to the form of the statute, and to the damage of the plaintiff ... dollars.

Or, if the action is brought under the second clause of section 1159 of the California Code of Civil Procedure, or other similar statute, allege in place of the foregoing, as follows:

.... day of

II. That afterward, to-wit, on the 18.., and while the plaintiff was so in possession of said land and premises, the defendant peaceably entered thereon, and afterwards, and on the same day, forcibly turned out and expelled the plaintiff therefrom [or if the eviction was by threats, and menacing conduct, state the facts in regard thereto], contrary to the form of the statute, and to the damage of the plaintiff dollars.

III. That the said defendant unlawfully withholds and keeps possession of said land and premises, and has so held and kept possession of the same at all times since the said ........ day of

18..

IV. That in consequence of said acts the plaintiff has been deprived of the rents, issues, and profits of said land and premises, to his damage .. dollars.

....

[DEMAND OF JUDGMENT.]

-

The action is a summary

§ 2922. Action character of. proceeding to recover possession of premises forcibly or unlawfully detained. The inquiry in such cases is confined to the actual peaceable possession of the plaintiff, and the unlawful or forcible ouster or detention by defendant, the object of the law being to prevent the disturbance of the public peace by the forcible assertion of a private right. Question of title or right of possession can not arise; a forcible entry upon the actual possession of plaintiff being proven, he would be entitled to restitution, though the fee simple, title, and present right of possession are shown to be in the defendant. At common law, a person holding the title to land, and having a present right of entry, might use actual force in entering, if necessary, for overcoming any forcible resistance, because his right of entry being perfect, no other person could lawfully resist him in the exercise of his perfect right. The English Statutes of Forcible Entry and Detainer declared that an entry with actual force should subject the party so entering to an indictment for any consequential breach of the peace, and to restitution of possession, and also to an action of trespass. But these statutes have always been so construed as not to affect the common-law right of justifying in an action of trespass quare clausum fregit the forcible entry, by pleading and proving a right of entry, and hence liberum tenementum has, notwithstanding those statutes, been always held to be an effectual plea to the action of trespass,

1 McCauley v. Weller, 12 Cal. 500; Romero v. Gonzales, 3 N. Mex. 35; Voll v. Hollis, 60 Cal. 569; Commissioners v. Barnard, 98 id. 199; Felton v. Millard, 81 id. 540; Holland v. Green, 62 id. 67; Nicrosi v. Phillipi, 91 Ala. 299. In this action two questions are presented, viz.: Was the plaintiff at the time of the entry by the defendant exercising such acts of dominion over the property as constitute actual possession in law; and did the defendant forcibly deprive the plaintiff of this possession. Potts v. Magnes, 17 Col.

and thus proves that the right of entry is the right to make an actual entry on the land.2 The Statutes against Forcible Entry and Detainer are not aimed against the right of entry, nor even against the entry where the right to enter exists, but against an entry, irrespective of the right, under circumstances specially named or described in the statute. The right of entry could not be taken away by the statute, though it is entirely competent for the legislature, in the interest of peace and good order, to prohibit its exercise in such manner as would involve a breach of the peace or the wrongful injury or destruction of property. The injury to the public through an improper exercise of this important right may directly affect but one person, yet it is a wrong to the public, just as a crime committed against the person of A. is yet an offense against the commonwealth. Upon no other theory can any valid statute be framed which shall take away from me a right, or hinder its exercise, any more than I can be deprived of my property by the mere force of legislative enactment. The other branch of the statute, that in relation to unlawful detainer, is merely a summary mode of recovering possession by action from a tenant of real property. It will be observed that under the California statute there is no such thing as an "unlawful entry" except as constituting, under certain circumstances, a "forcible detainer." This action is not intended as a substitute for the action of ejectment.3 The purpose of the action is to obtain a restitution of the premises and damages occasioned by the forcible entry and detainer, but when damages are claimed which do not necessarily result from the forcible entry or detainer. the title to the property injured may be a proper subject of inquiry, as in other actions for the same injury. Such action does not lie to enforce an incorporeal right of way, although an action on the case might be maintained for its obstruction, or a suit in equity to restrain an interference therewith.5 Nor can an action for unlawful entry, unaccompanied by actual force, be maintained, under the statute of New Mexico, on the ground of such entry being constructively forcible."

2 Chief Justice Robertson, in Tribble v. Frame, 7 J. J. Marsh. 601.

3 Hodgkins v. Jordon, 29 Cal. 577; Owen v. Doty, 27 id. 502; Brandenburg v. Reithman, 7 Col. 323.

4 Warburton v. Doble, 38 Cal. 619. 5 Roberts v. Trujillo, 3 N. Mex. 50.

6 Romero v. Gonzales, 3 N. Mex. 35.