Attorney General v. Sullivan

• Decision Date: 21 May 1895
• Citation: 40 N.E. 843,163 Mass. 446
• Parties: ATTORNEY GENERAL v. SULLIVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 446

40 N.E. 843

ATTORNEY GENERAL v. SULLIVAN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 21, 1895

COUNSEL

Francis W. Qua, for plaintiff.

J.J. & W.A. Hogan, for defendant.

OPINION

FIELD C.J.

This is an information in the nature of quo warranto to try the title of the defendant to the office of president of the common council of the city of Lowell, and the single question before us is whether the defendant is as of right entitled to a trial by jury. So far as we know, the first time the words "quo warranto" are found in the statutes, whether of the colony, province, or commonwealth, is in Rev.St. c 81, § 5, wherein the supreme judicial court is given power "to issue writs of error, certiorari, mandamus prohibition and quo warranto; and all other writs and processes to corporations and individuals that shall be necessary to the furtherance of justice and the regular prosecution of the laws." This provision is now found in Pub.St. c. 150, § 3. Of this section in the Revised Statutes the commissioners say: "This power has always been exercised by the supreme judicial court, though not expressly mentioned in the statutes." Commissioners' Report c. 81, notes. No form of the writ of quo warranto has ever been prescribed in this commonwealth. So far as we know, an information in the nature of quo warranto is first mentioned in our statutes in St.1851, c. 233, §§ 55-64. This statute was repealed by St.1852, c. 312, and sections 42-50 of said last-named statutes substituted therefor. See Pub.St. c. 186, §§ 17-25. These sections in St.1852, c. 312, empowered any person whose private right or interest has been injured or is put in hazard by the exercise by a private corporation, or by persons claiming to be a private corporation of a franchise or a privilege not conferred by law, to apply to the supreme judicial court for leave to file an information in the nature of quo warranto, and they regulated the proceedings. Both the writ of quo warranto and the information in the nature of quo warranto were common-law processes. The writ was an original writ, issued out of chancery, and was regarded as a writ of right on the part of the crown, and was exclusively a civil process. The information in the nature of quo warranto was originally a criminal proceeding, in which, if the issue was found against the defendant, in addition to a judgment of ouster, a fine might be imposed. The colonists of Massachusetts were familiar with the writ of quo warranto, and were in great fear that their charter would be seized into the king's hands on such a writ, and the writ was actually issued and served upon the officers of the colony, a copy of which is found in 5 Mass.Col.Rec. 421. This writ was not prosecuted, and the charter was subsequently canceled on scire facias in chancery.

From such investigation as we have been able to make, we cannot find that the writ of quo warranto was ever actually used in the colony, province, or commonwealth. There were no private business corporations in the colony or province until near the time of the Revolution, and perhaps only one private corporation of any kind in Massachusetts before the year 1772; namely, that of Harvard College. See 5 Prov.Laws, 177-179. The municipal corporations of towns and parishes were always subject to the control of the legislature, and bore little resemblance to the cities and boroughs in England; and neither the writ nor the information has ever been used here to try the title of the inhabitants to their municipal franchises, although the question whether either proceeding can be used for such a purpose has never been decided. See Attorney General v. Salem, 103 Mass. 138; State v. Bradford, 32 Vt. 50. There were no ecclesiastical corporations here, in the English sense of that term. There was therefore probably nothing in the colony or province which could be brought within the reach of a writ of quo warranto or of an information in the nature of quo warranto except the public offices. Whether the information in the nature of quo warranto was used during the provincial period to try the title to public offices we have no knowledge, as only a partial search of the records has been made. The earliest printed reports of cases decided since the adoption of the constitution show a familiarity on the part of the judges with an information in the nature of quo warranto to try the title to a public office; and apparently the judges at first followed the practice in England under the statute of 9 Anne, c. 20, which did not in terms extend to the colonies. See Com. v. Athearn, 3 Mass. 285; Com. v. Smead, 11 Mass. 74. At common law the attorney general, ex officio, has the right either to sue out a writ of quo warranto or to bring an information in the nature of quo warranto, to try the title to a public office, and is not compelled to ask leave of the court; but no private individual at common law has a right to use the name of the attorney general for the purpose of suing out such a writ or of bringing such an information. The practice of permitting a private individual to apply to this court for leave to file an information in the nature of quo warranto rests, it seems, in this commonwealth, upon statute. This is explained in Goddard v. Smithett, 3 Gray, 116. In that case the court say: "There is, and always has been, in this commonwealth, an authority in the attorney and solicitor general, as incident to the office, to file informations ex officio in the name and behalf of the commonwealth. The information is in its nature a prosecution for some offense against the government, by an application to a court of criminal jurisdiction, and is essentially a public criminal prosecution. When filed by the attorney general, it is done at his own discretion, according to his own view of the rights of the government, without leave of court, nor will the court direct or advise him on the subject." See Com. v. Allen, 128 Mass. 308. The English statutes on the subject may be found in Cole, Cr.Inf. p. 115 et seq., and Shortt, Inf. p. 108 et seq. Our statutes concerning informations in the nature of quo warranto have no application to the present case, as they relate solely to private corporations or to persons claiming to be a private corporation; and Pub.St. c. 150, § 3, empowering this court to issue writs, relates to writs of quo warranto, and not to informations in the nature of quo warranto. The writ of quo warranto seems to have become obsolete in England before our Revolution, and from the precedents here, so far as we know, an information in the nature of quo warranto instead of a writ has uniformly been used; and Pub.St. c. 150, § 3, should, we think, be interpreted to authorize proceedings in the form of an information in the nature of the writ. See State v. Leatherman, 38 Ark. 81; People v. Keeling, 4 Colo. 129; State v. West Wis. Ry. Co., 34 Wis. 197; State v. Gleason, 12 Fla. 190; 2 Spel.Extr. Relief, § 1768 et seq.

The question of the constitutional right of the defendant to a trial by jury has been argued in the present case. There is, however, no statute prescribing the procedure, and no statute intimating whether in such a case as this the defendant has or has not a right to a trial by jury; and therefore no question of the constitutionality of a statute is involved in the case. In Pub.St. c. 186, § 22, the attorney general is authorized to intervene in certain cases, and to demand "a judgment of fine and forfeiture," which seems to indicate that informations under this chapter are still regarded as of a criminal nature; and this is also intimated in the opinion in Goddard v. Smithett, ubi supra. But in Com. v. Fowler, 11 Mass. 339, which was an information at common law, the judgment is a judgment of ouster without a fine. See Campbell v. Talbot, 132 Mass. 174. In many of the states of this country the information in the nature of quo warranto is now regarded as a purely civil proceeding. Ames v. State, 111 U.S. 460, 4 Sup.Ct. 437. It has been made so in England by St. 47 & 48 Vict. c. 61, § 15. If the present information must be considered as a criminal proceeding, undoubtedly the defendant is entitled to a trial by jury. But, if it is a civil proceeding, the rights of the defendant are not so clear. Mr. Dane (6 Abr. c. 186, art. 13), in speaking of quo warranto informations, says: "The law upon this subject has been but very imperfectly settled by American decisions. No one is recollected in the federal courts, and but few have been made in the state courts. The want of such is less to be regretted, for it is believed that there are few or no American statutes on the subject of informations in the nature of the old writ of quo warranto (though there are sundry American statutes concerning informations on the penal statutes for the recovery of statute penalties), and therefore common-law privileges govern mainly." The earliest Massachusetts case cited by him is Com. v. Athearn, 3 Mass. 285. In speaking of the cases in New York, and of statutes of 4 & 5 W. & M. c. 12, and 9 Anne, c. 20, he says that if these statutes "have not been adopted in Massachusetts, and no evidence is found to show they have been, then quo warranto informations are wholly at common law." See People v. Richardson, 4 Cow. 97, and note.

This court, by statute, has ceased to have original jurisdiction over crimes; and, if the...