Atchison, T. & S.F.R. Co. v. People ex rel. Attorney General

• Decision Date: 01 October 1879
• Citation: 5 Colo. 60
• Parties: THE ATCHISON, TOPEKA AND SANTA FE R. R. CO. v. THE PEOPLE EX REL. ATT'Y-GENERAL.
• Court: Colorado Supreme Court

5 Colo. 60

THE ATCHISON, TOPEKA AND SANTA FE R. R. CO. v. THE PEOPLE EX REL. ATT'Y-GENERAL.

Supreme Court of Colorado

October, 1879

Error to District Court of El Paso County.

Mr. G B. REED, Mr. WILLARD TELLER, and Mr. Charles E. GAST, for plaintiffs in error.

Attorney-general CHARLES W. Wright, for defendants in error.

ELBERT J.

This is a proceeding by information in the nature of a quo warranto upon the relation of the Attorney-general in behalf of the State against the Atchison, Topeka & Santa Fe railroad, for the alleged usurpation of a corporate franchise.

Some of the questions made are disposed of by the decision in the case of the Central & Georgetown Road company v. The People decided at the April term. It was there held (1), that whatever the form of the action prescribed by the General Assembly to remedy the usurpation or misuse of a corporate franchise or public office, whether by information in the anture of a quo warranto, or by the ancient writ of quo warranto, or by a complaint under the Code in a civil action, the objects to be obtained are identical, and the proceeding is in substance civil, instituted for the determination of purely civil rights; (2), that chapter 25 of the Code, concerning 'astions for the usurpation of an office or franchise,' is free from any constitutional objections arising from section 20, article 5, of the constitution; (3), that under the Code the prceeding to remedy the usurpation or misuse of a franchise, is by civil complaint and summons.

It is insisted, however, that notwithstanding the provisions of chapter 25 concerning actions for the usurpation of an office or franchise, the proceeding by information, in the nature of quo warranto, still remains, and may be pursued, as at common law.

That this position is without foundation, we think clear. A leading term of all Code reform, is the abolition of common law forms of actions, and the establishment of a single, simple and universal remedial procedure called a 'civil action,' by which rights shall be maintained and duties enforced. The Code commences with the declaration 'that the distinctions between actions at law and suits in equity, and the distinct forms of actions and suits heretofore existing are abolished, and there shall be in this State but one form of civil action for the enforcement or protection of private rights, and the redress or prevention of private wrongs, which shall be the same at law and in equity, and which shall be denominated a civil action, and which shall be prosecuted and defended as prescribed in this act.'

Section 48 declares 'that the mode of pleadings in civil actions and the rules by which the sufficiency of the pleadings shall be determined shall be as prescribed in this act and not otherwise.'

These provisions heave no doubt of the mandatory character of the procedure prescribed by the Code in lieu of the ordinary common law forms of actions, such as assumpsit, debt, covenant, ejectment, etc., etc.

The Legislature having, in chapter 25 of the Code, provided for 'actions for the usurpation of an office or franchise,' and having repealed by the same act, chapter 73 of the revised statutes, authorizing proceedings by information in the nature of quo warranto, a clear intent is manifested not to give a cumulative remedy, but to replace the common law proceeding by that prescribed by the Code. The repeal implies a negation.

It is a general rule that where a statute provides the remedy to test the right to exercise a franchise or office, it is exclusive of all other remedies. 2 Potter on Corp. Sec. 665; Palmer v. Foley, 36, Superior Court Rep. (N. Y.) 14. An action for the usurpation of an office of franchise, therefore, is a civil action under the Code of this State, and must be governed by the rules applicable thereto; must be instituted by filing a complaint and issuing a summons, and proceeded with the same as any other civil action.

When common law forms contain the allegation necessary to support any particular cause of action, they may be used, provided they comply with the provisions of the Code, and state the facts constituting the cause of action in ordinary and concise language. The information in this case is in the form heretofore usually adopted when the proceeding was by...