Knowlton v. Shomo

• Decision Date: 12 January 1897
• Citation: 167 Mass. 424,45 N.E. 762
• Parties: KNOWLTON, Atty. Gen. v. SHOMO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 424

45 N.E. 762

KNOWLTON, Atty. Gen. v. SHOMO.

Supreme Judicial Court of Massachusetts, Worcester.

January 12, 1897

COUNSEL

Frank P. Goulding and Frank L. Dean, for informant.

Robinson & Robinson, for defendant.

OPINION

FIELD C.J.

If this information can be maintained for the purpose of declaring the charter of the defendant forfeited, it must be as an information in the nature of a quo warranto, brought by the attorney general in behalf of the commonwealth. Such an information is a common-law proceeding, and the pleadings and trial must conform to common-law procedure. Attorney General v. Sullivan, 163 Mass. 446, 40 N.E. 843. The pleadings are not regulated by the provisions of Pub.St. c. 167. There are some indications in the pleadings that the information was regarded by the parties as an information in equity, but, as no objection is made on that ground, it would not, perhaps, be necessary to discuss it but it must be regarded as an injunction at common law, of which this court has jurisdiction, under Pub.St. c. 150, § 3; Folger v. Insurance Co., 99 Mass. 268; Attorney General v. Salem, 103 Mass. 138. As an information in the nature of a quo warranto, to declare forfeited the charter of the defendant on the ground of the nonuser or misuser of its franchise, the information ought not to be prosecuted "at the expense and the instance of the inhabitants of Petersham," but should be prosecuted, if at all, in behalf of and at the expense of the commonwealth and by or under the immediate direction of the attorney general. Com. v. Insurance Co., 5 Mass. 230; Goddard v. Smithett, 3 Gray, 116. The mention of relators in the information might be rejected as surplusage. Com v. Allen, 128 Mass. 308. But, rejecting this, it does not appear that the information was filed by the attorney general in behalf of the commonwealth, and it apparently has been prosecuted by an attorney at law employed by the inhabitants of the town of Petersham; and the town of Petersham, it is conceded, has no interest in the prosecution which the law recognizes. It is for the attorney general, on his official responsibility, to determine whether he desires to apply for leave to amend the information so that it shall appear to have been brought by him in behalf of the commonwealth. Rice v. Bank, 126 Mass. 300; High, Extr.Rem. (3d Ed.)§§ 697, 698. If such an amendment is allowed by a single justice of this court and...